Governance of Marine Geoengineering
SPECIAL REPORT
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67 Erb Street West Waterloo, ON, Canada N2L 6C2 www.cigionline.org Contents
v Acronyms and Abbreviations 43 Marine Geoengineering Amendments under the London Protocol vii Executive Summary 49 Biodiversity Beyond National Jurisdiction 1 Introduction — An Opportunity to Strengthen Marine Geoengineering Governance under 7 Potential Ocean-based International Law? Geoengineering Options 53 Conclusion 17 International Law and Marine Geoengineering 57 About the Authors
Acronyms and Abbreviations
AOA artificial ocean alkalization ENMOD Convention on the Prohibition Convention of Military or Any Other Hostile BBNJ biodiversity beyond national jurisdiction Use of Environmental BECCS bioenergy with carbon Modification Techniques capture and storage EPBC Act Environment Protection and CBD UN Convention on Biodiversity Biodiversity Conservation Act CCAMLR Convention on the Conservation of GBR Great Barrier Reef Antarctic Marine Living Resources GHG greenhouse gas CCS carbon capture and sequestration HNLC high-nitrate, low-chlorophyll CDR carbon dioxide removal IPCC Intergovernmental Panel CO2 carbon dioxide on Climate Change COP Conference of the Parties JARPA Japan’s Research Program in the Antarctic EEZ exclusive economic zone LOSC UN Convention on the Law of the Sea EIAs environmental impact assessments MCB marine cloud brightening
v Governance of Marine Geoengineering
MSR marine scientific research NDCs nationally determined contributions NGOs non-governmental organizations OFAF Assessment Framework for Scientific Research Involving Ocean Fertilization OIF ocean iron fertilization OSPAR Convention for the Protection of Convention the Marine Environment of the North-East Atlantic RFMOs regional fisheries management organizations SRM solar radiation management UNESCO UN Educational, Scientific and Cultural Organization UNFCCC UN Framework Convention on Climate Change UNFSA United Nations Fish Stocks Agreement
vi Executive Summary
After more than two decades of UN negotiations, likely effectiveness, requisite levels of international global greenhouse gas (GHG) emissions continue cooperation and intensity of environmental risks. This to rise, with current projections indicating the diversity of marine geoengineering activities will likely planet is on a pathway to a temperature increase of place significant new demands upon the international approximately 3.2°C by 2100, well beyond what is law system to govern potential risks and opportunities. considered a safe level. This has spurred scientific and policy interest in the possible role of solar radiation International ocean law governance is comprised management (SRM) and carbon dioxide removal of a patchwork of global framework agreements, (CDR) geoengineering activities to help avert passing sectoral agreements and customary international critical climatic thresholds, or to help societies recover law rules that have developed over time in response if global temperatures overshoot expectations of to disparate issues. These include maritime access, safe levels. There are various proposals for SRM and fisheries management, shipping pollution, ocean CDR marine geoengineering, but aside from ocean dumping and marine scientific research (MSR). This iron fertilization (OIF) and marine cloud brightening patchwork of oceans governance contains several (MCB), none of these options have moved beyond bodies of rules that might apply in governing marine conceptual development and laboratory testing. geoengineering activities. However, these bodies Marine geoengineering proposals show significant of rules were negotiated for different purposes, diversity in terms of their purpose, scale of application, and not specifically for the governance of marine
vii Governance of Marine Geoengineering
geoengineering. The extent to which this patchwork of rules might contribute to marine geoengineering governance will vary, depending on the purpose of an activity, where it is conducted, which state is responsible for it and the types of impacts it is likely to have. Applying this patchwork to a specific marine geoengineering activity is complex, and existing rules may provide only limited concrete guidance as to how an activity ought to be conducted. The 2013 amendment to the London Protocol on ocean dumping provides the most developed and specific framework for marine geoengineering governance to date. But the capacity of this amendment to bolster the capacity of international law to govern marine geoengineering activities is limited by some significant shortcomings. Negotiations are under way to establish a new global treaty on conservation of marine biodiversity in areas beyond national jurisdiction, including new rules for area-based management, environmental impact assessments (EIAs) and capacity building/technology transfer. The potential provisions of this agreement could be pertinent to marine geoengineering options. This negotiation is both an opportunity and a risk for marine geoengineering governance. A new agreement has the potential to fill key gaps in the existing patchwork of international law for marine geoengineering activities in high-seas areas. However, it is also important that this new treaty be structured in a way that is not overly restrictive, which might hinder responsible research and development of marine geoengineering in high-seas areas.
viii Introduction
When the Paris Agreement1 to the United Nations triumph for people and our planet.”5 However, it has Framework Convention on Climate Change2 (UNFCCC) become increasingly clear in the ensuing years that the was adopted in 2015, many policy makers lauded non-binding pledges made by the parties to effectuate the agreement, characterizing it as a “major leap for the treaty’s overarching objectives, may prove to be mankind,”3 a “watershed event,”4 and a “monumental wholly inadequate to the imposing task at hand.
The Paris Agreement aims to strengthen the objectives of the UNFCCC by “[h]olding the increase in the global average temperature to well below 2°C above 1 United Nations Framework Convention on Climate Change, Paris Agreement, 12 December 2015, Dec CP.21, 21st Sess, UN Doc FCCC/CP/2015/L.9 pre-industrial levels and pursuing efforts to limit the (entered into force 4 December 2016) [Paris Agreement]. temperature increase to 1.5°C above pre-industrial 6 2 United Nations Conference on Environment and Development, Framework levels.” However, given the global community’s Convention on Climate Change, 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994) [UNFCCC].
3 J Vida et al, “World leaders hail Paris climate deal as ‘major leap for 5 “COP21: UN chief hails new climate change agreement as ‘monumental mankind’”, The Guardian (12 December 2015), online:
1 Governance of Marine Geoengineering
growing heat-trapping emissions, and steadily by 2100,12 with temperatures continuing to rise increasing concentrations of long-lived GHGs in the for centuries beyond, and staying above Holocene atmosphere, recent assessments indicate that the level conditions for more than 10,000 years.13 remaining “carbon budget” to hold temperatures to below 1.5ºC may be exhausted by 2030,7 with Sobering projections of this nature have led to temperatures potentially reaching 1.5ºC by 2040 if increasing interest in the potential role of climate current rates of warming continue.8 Moreover, even geoengineering techniques to help avert passing the budget required to hold global temperatures critical climatic thresholds,14 or to help societies recover to below 2ºC may be expended by 2030,9 or, at in so-called overshoot scenarios (i.e., where global the most, within a few decades thereafter.10 temperature overshoots expectations of safe limits).15 Geoengineering is defined by the United Indeed, Climate Analytics et al. projects that Kingdom’s Royal Society as “the deliberate large- the nationally determined contributions (NDCs) scale manipulation of the planetary environment made by states under the Paris Agreement put to counteract anthropogenic climate change.”16 the world on track for temperature increases There are various types of climate geoengineering of 3.2°C.11 Other contemporaneous assessments proposals, most of which are still at a conceptual project that the current NDCs may result in global temperature increases of between 2.6°C and 3.7°C 12 Calum Brown, “Achievement of Paris Climate Goals unlikely due to time lags in the land system” (2019) 9 Nature Climate Change 203 at 206; Rob Bellamy, “Incentivize negative emissions responsibly” (2018) 3 Nature Energy; Raftery et al, supra note 10, 637–39; Rogelj et al, supra note 7 at 634. It should be emphasized that the Paris Agreement does provide for a “global stocktake” every five years “to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals,” with an eye to enhancing domestic and international commitments to meet the agreement’s overarching objectives, if necessary. See Paris Agreement, supra note 1, art 14. While this provision could help the parties to avoid passing the 2°C threshold, this would require substantially strengthened commitments. See Wolfgang Obergassel et al, “Phoenix from the Ashes—An Analysis of the Paris Agreement to the United Nations Framework Convention on Climate Change”, Wuppertal Institute for Climate, Environment and Energy (January 2016) at 45, online:
11 Climate Action Tracker, “The highway to Paris”, online:
2 Introduction
or modelling stage. However, within scientific Concentration Pathway.22 Other frequently discussed and policy literatures, climate geoengineering SRM options include MCB23 and space-based options.24 technologies are usually divided into two broad categories, that is, SRM and CDR approaches.17 CDR options, also often referred to as negative emissions technologies, seek to remove and sequester
Most SRM techniques focus on reducing the amount carbon dioxide (CO2) from the atmosphere, either of solar radiation absorbed by the earth (currently by enhancing natural terrestrial and ocean sinks pegged at approximately 235 watts per square metre18) for carbon, or deploying chemical engineering to 25 by an amount sufficient to offset the increased trapping remove CO2 from the atmosphere. This, in turn, of infrared radiation by rising levels of GHGs.19 The can increase the amount of long-wave radiation most widely discussed and actively investigated emitted by the earth back to space, reducing radiative SRM option to date is sulfur aerosol injection.20 This forcing and thus exerting a cooling effect.26 method seeks to enhance planetary albedo (the surface reflectivity of the sun’s radiation)21 through Many analysts now believe that large-scale the injection of a gas such as sulfur dioxide (or deployment of CDR options may be critical to another gas that will ultimately react chemically) in achieve the temperature target range of the Paris the stratosphere to form sulfate aerosols. The high Agreement.27 Indeed, 87 percent of the IPCC’s Fifth reflectivity of aerosols causes a negative forcing Assessment scenarios consistent with achieving the that could ultimately substantially reduce projected 2ºC climate stabilization target (with more than a 50 temperature increases under the Intergovernmental percent likelihood) assume widespread utilization Panel on Climate Change’s (IPCC’s) Representative
17 William CG Burns, “Geoengineering the Climate: An Overview of Solar Radiation Management Options” (2012) 46 Tulsa L Rev 283 at 286. There is also increasing characterization of SRM options, such as “albedo modification,” including in the two most recent assessment reports of the IPCC. See Mark G Lawrence & Paul J Crutzen, “Was breaking the taboo on research on climate engineering via albedo modification a moral hazard, or a moral 22 Yosuke Arino et al, “Estimating option values of solar radiation management imperative?” (2016) 5 Earth’s Future 136. It should also be emphasized that assuming that climate sensitivity is uncertain” (2016) 113 PNAS 5886; Andy some approaches denominated as “geoengineering,” including some CDR Jones et al, “A comparison of the climate impacts of geoengineering by options, are closely akin to technologies for industrial carbon management, stratospheric SO2 injection and by brightening of marine stratocumulus cloud” such as carbon capture and sequestration or land use, land-use change (2011) 12:2 Atmospheric Science Letters 176, 178–80. For further details and forestry, and thus might not be classified by everyone as “climate about MCB, see the second section of this report, “MCB.” geoengineering.” See John Virgoe, “International Governance of a Possible Geoengineering Intervention to Combat Climate Change” (2009) 95 Climatic 23 K Alterskjær & JE Kristjánsson, “The sign of the radiative forcing from marine Change 103. cloud brightening depends on both particle size and injection amount” (2013) 40:1 Geophysical Research Letters 210; John Latham et al, “Marine cloud 18 JT Kiehl & Kevin E Trenberth, “Earth’s Annual Global Mean Energy Budget” brightening” (2012) 370:1974 Philosophical Transactions Royal Society A 4217. (1997) 78:2 Bull American Meteorological Society 197. 24 Colin R McInnes, “Planetary Macro-Engineering Using Orbiting Solar 19 Michael C MacCracken, “Beyond Mitigation: Potential Options for Counter- Reflectors” in Viorel Badescu, RB Cathcart & RD Schuiling, eds, Macro- Balancing the Climatic and Environmental Consequences of the Rising Engineering: A Challenge for the Future (Dordrecht, Netherlands, Springer, Concentrations of Greenhouse Gases” (2009) World Bank Policy Research 2006) 215; R Bewick, JP Sanchez & CR McInnes, “The feasibility of using an Working Paper 4938 at 15. Balancing positive global mean radiative forcing L1 positioned dust cloud as a method of space-based geoengineering” (2012) 2 of +4 W/m2, projected with a doubling of CO from pre-industrial levels, would 49:7 Advances in Space Research 1212. Space-based approaches all seek require reducing solar radiative forcing by approximately 1.8 percent; see to modify the earth’s energy balance in terms of incoming solar radiation Royal Society, supra note 16 at 23. While most SRM options focus on reducing through approaches such as deployment of a “space parasol,” large metallic the amount of incoming short-wave solar radiation, one approach, cirrus cloud reflectors, clouds of small spacecraft orbited near the inner Lagrange point, or thinning, seeks to increase outgoing long-wave radiation by reducing the an artificial planetary ring of passive scattering particles. See FJT Salazar, CR optical death of cirrus clouds by injecting ice nuclei into regions of cirrus cloud McInnes & OC Winter, “Intervening in Earth’s climate system through space- formation, which can induce a transition from homogeneous to heterogeneous based solar reflectors” (2016) 58:1 Advances in Space Research 17. freezing. See Jón Egill Kristjánsson et al, “The hydrological cycle response to cirrus cloud thinning” (2015) 42 Geophysical Research Letters 10,807. 25 Timothy Lenton, “The Global Potential for Carbon Dioxide Removal” in Roy Harrison & Ron Hester, eds, Geoengineering of the Climate System (London, 20 MacMartin, Ricke & Keith, supra note 14 at 2; Wil CG Burns, “Solar Radiation UK: Royal Society of Chemistry, 2014) 53. Management and its Implications for Intergenerational Equity” in Wil CG Burns & Andrew L Strauss, eds, Climate Change Geoengineering: Philosophical 26 TM Lenton & NE Vaughan, “The Radiative Forcing Potential of Different Perspectives, Legal Issues, and Governance Frameworks (New York: Climate Geoengineering Options” (2009) 9 Atmospheric Chemistry & Physics Cambridge University Press, 2013) 208 [Burns, “SRM & Intergenerational 5539. Equity”]. 27 E Kriegler et al, “Pathways limiting warming to 1.5°C: a tale of turning around 21 “Albedo is the fraction of incident sunlight that is reflected.” Albedo is in no time?” (2018) 376:2119 Philosophical Transactions Royal Society at measured on a 0–1 scale. If a surface absorbs all incoming sunlight, its albedo 1; Sabine Fuss et al, “Negative emissions—Part 2: Costs, potentials and side is 0; if it is perfectly reflecting, its albedo is 1. See Arctic Coastal Ice Processes, effects” (2018) 13:6 Environmental Research Letters at 2; Bellamy, supra note “Albedo,” online:
3 Governance of Marine Geoengineering
of CDR technologies.28 The vast majority of these technologies, including large-scale deployment of scenarios contemplate deployment of one CDR BECCS, as well as the most widely discussed SRM option, bioenergy with carbon capture and storage option, sulfur aerosol injection, have deepened,36 (BECCS),29 a process by which biomass is converted interest in other geoengineering approaches has also to heat, electricity, or liquid or gas fuels, coupled increased. Indeed, many commentators contend
with the capture of CO2 and storage in geological or that the optimal approach, at least in the context other reservoirs.30 Other frequently discussed CDR of CDR options, may be adoption of a portfolio of technologies include direct air capture,31 biochar,32 approaches, all deployed at relatively modest scales.37 enhanced mineral weathering,33 reforestation/ afforestation34 and soil carbon enhancement.35 This has included increasing discussion of the potential role of marine-based processes.38 As As our understanding of the potential risks associated defined by the parties to the London Protocol to the with the most privileged negative emissions Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, marine geoengineering means “a deliberate intervention 28 Ottmar Edenhofer et al, “Climate Change 2014: Mitigation of Climate in the marine environment to manipulate natural Change Working Group III Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change” (2014) at 14–15; Espen processes, including to counteract anthropogenic Moe & Jo-Kristian S Røttereng, “The post-carbon society: Rethinking the climate change and/or its impacts.”39 international governance of negative emissions” (2018) 44 Energy Research & Social Science 199. It should be emphasized that there are scenarios that avoid the passing of the 2ºC threshold, while foregoing or minimizing the use The world’s oceans are a logical cynosure for of CDR options. See Detlef P van Vuuren et al, “Alternative pathways to the 1.5°C target reduce the need for negative emission technologies” (2018) 8 geoengineering research, as they cover 71 percent Nature Climate Change 391; Johan Rockström et al, “A roadmap for rapid of the planet’s area, currently remove 25 percent decarbonization” (2017) 355 Science 1269. of anthropogenic CO2 emissions and have great 29 Bellamy, supra note 12 at 532; Wil Burns & Simon Nicholson, “Bioenergy potential to remove and store much more.40 with carbon capture and sequestration with storage (BECCS): the prospects and challenges of an emerging climate response” (2017) 7:2 J Environmental Studies & Sciences 527.
30 Mathias Fridahl, “Introduction” in Mathias Fridahl, ed, Bioenergy with Carbon 36 Risks associated with BECCS include potentially massive demands for land, with Capture and Storage: From global potentials to domestic realities (Brussels: serious implications for food security, large water demands, huge increased European Liberal Forum, 2018). appropriation of nitrogen and potential adverse impacts on biodiversity. See Mathilde Fajardy et al, “BECCS deployment: a reality check” (2019) 31 AA Okesola et al, “Direct Air Capture: A Review of Carbon Dioxide Capture Grantham Institute Briefing Paper No 28 at 5–8; RC Henry et al, “Food supply from the Air” (2018) 413 Materials Science & Engineering, Conference 1 at and bioenergy production within the global cropland planetary boundary” 1–4; Jere Elfving, Cyril Bajamundi & Juho Kauppinen, “Characterization and (2018) 13:3 PLOS ONE e0194695 at 1–17; Burns & Nicholson, supra note 29 Performance of Direct Air Capture Sorbent” (2017) 114 Energy Procedia 6087; at 529–30; S Kartha & K Dooley, “The risks of relying on tomorrow’s ‘negative Klaus Lackner, “The thermodynamics of direct air capture of carbon dioxide” emissions’ to guide today’s mitigation action” (2016) Stockholm Environment (2013) 50 Energy 38. Institute Working Paper No 2016-08; Phil Williamson, “Emissions reduction: scrutinize CO2 removal methods” (2016) 530:7589 Nature 153. Potential risks 32 C Werner et al, “Biogeochemical potential of biomass pyrolysis systems associated with SRM include potential declines in food production associated for limiting global warming to 1.5°C” (2018) 13 Environmental Research with changes in precipitation patterns, depletion of the ozone layer and rapid Letters 044036; S Mia et al, “Long-Term Aging of Biochar: A Molecular climatic changes should the use of such technologies be suddenly terminated. Understanding with Agricultural and Environmental Implications” (2017) 141 See Katherine Dagon & Daniel Schrag, “Exploring the Effects of Solar Advances in Agronomy 1. Biochar involves conversion of biomass, including Radiation Management on Water Cycling in a Coupled Land–Atmosphere crop residues, non-commercial wood and wood waste, manure, solid waste, Model” (2016) 29 J Climate 2635; Burns, “SRM & Intergenerational Equity”, non-food energy crops, construction scraps, yard trimmings, methane digester supra note 20; Simone Tilmes, R Müller & R Salawitch, “The sensitivity of polar residues or grasses, to a more stable form that can facilitate long-term storage ozone depletion to proposed geoengineering schemes” (2008) 320:5880 of carbon. This is effectuated either by medium-temperature pyrolysis, or Science 1201. high-temperature gasification processes. See “The European Transdisciplinary Assessment of Climate Engineering (EuTRACE): Removing Greenhouse Gases 37 Fajardy et al, supra note 36 at 3; Minx et al, supra note 7 at 3. from the Atmosphere and Reflecting Sunlight away from Earth” in Stefan Schäfer et al, eds, Final report of the FP7 CSA project EuTRACE (2015) at 31. 38 The judiciousness of conducting an assessment of the potential risks and benefits of an array of climate geoengineering approaches was emphasized 33 Christiana Dietzen et al, “Effectiveness of enhanced mineral weathering as a by the IPCC in its special report on the implications of temperature increases carbon sequestration tool and alternative to agricultural lime: An incubation of 1.5°C. In their Summary for Policymakers, the drafters of the report experiment” (2018) 74 International J Greenhouse Gas Control 251; Lyla emphasized, at least in the context of CDR options, that “[f]easibility and L Taylor et al, “Simulating carbon capture by enhanced weathering with sustainability of CDR use could be enhanced by a portfolio of options croplands: an overview of key processes highlighting areas of future model deployed at substantial, but lesser scales, rather than a single option at very development” (2017) 13:4 Biology 20160868. large scale.” IPCC, Global Warming of 1.5°C, supra note 8, SPM-23.
34 Derek Martin et al, “Carbon Dioxide Removal Options: A Literature Review 39 Amendment to the London Protocol to Regulate the Placement of Matter for Identifying Carbon Removal Potentials and Costs” (submitted in partial Ocean Fertilization and Other Marine Geoengineering Activities, Report of the fulfillment of the requirements for the degree of master of science (Natural Thirty-Fifth Consultative Meeting and the Eighth Meeting of the Contracting Resources and Environment, University of Michigan, 2017) at 18–31. Parties, UNEP, Res LP.4(8), Annex 4, LC 35/15 (2013) [Res LP.4(8)].
35 United Nations Environment Programme (UNEP), Emissions Gap 40 Jean-Pierre Gattuso et al, “Ocean Solutions to Address Climate Change Report 61-2 (2017), online:
4 Introduction
A turn toward marine geoengineering activities will place significant new demands upon the international law system to provide governance of the potential risks and opportunities. However, the rules of international law that will most likely be called on to provide governance of marine geoengineering have mostly developed in response to issues of quite different type and scale. It is therefore important and timely to assess the current capacity of the international law system to provide governance of marine geoengineering and what changes might be required.
This report thus proceeds as follows. The second section provides an extensive survey of the different types of marine geoengineering proposals that have appeared in the scientific literature and the few that have been the subject of field testing. This section details the substance of these proposals and highlights some of the environmental and social risks that have been identified. The third section provides analysis of various rules of international law that might be relevant to marine geoengineering. This section details the key oceans regimes that might be called upon to govern proposals on marine geoengineering activity, including the London Convention/London Protocol treaties on marine dumping, the 1982 United Nations Convention on the Law of the Sea (LOSC)41 and customary international law rules relating to transboundary harm. The fourth section analyzes an amendment to the London Protocol, which arguably represents the most advanced attempt at marine geoengineering governance to date, but which has yet to come into force. The fifth section looks at a recent LOSC negotiation process on high seas biological diversity that may provide a new venue for governance of marine geoengineering. The final section concludes with a summary of key findings and discussion of areas for reform of the international law system that might assist in meeting future demands for governing marine geoengineering.
41 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) [LOSC].
5
Potential Ocean-based Geoengineering Options
As discussed above, the oceans have significant radiative balance.42 MCB is a geoengineering approach potential as sites for geoengineering research, field that seeks to disperse sea salt particles into maritime testing and possible implementation. There have been clouds. Sea salt particles are a major source of cloud numerous proposals for both SRM and CDR marine condensation nuclei, which in turn enhance cloud geoengineering. The following provides an overview of droplet number concentrations, reducing cloud the more prominent marine geoengineering proposals. droplet size. This results in an increase in droplet surface, and thus albedo.43 This approach could also SRM Proposals
MCB 42 John Latham et al, “Global temperature stabilization via controlled albedo enhancement of low-level maritime clouds” (2008) 366:1882 Philosophical Low-level marine stratiform clouds cover Transactions Royal Society A [Latham et al, “Global temperature stabilization”]. approximately 25 percent of ocean surfaces, and usually have albedos of 0.3 to 0.7, which exert a 43 Ben Parkes, Alan Gadian & John Latham, “The Effects of Marine Cloud Brightening on Seasonal Polar Temperatures and the Meridional Heat Flux” substantial cooling effect in terms of the earth’s (2012) International Scholarly Research Notices, Article ID 142872 at 1; J Feitcher & T Leisner, “Climate engineering: A critical review of approaches to modify the global energy balance” (2009) 176:1 European Physical J Special Topics 87.
7 Governance of Marine Geoengineering
enhance the longevity of such maritime clouds, albedo under some circumstances,49 emphasizing potentially enhancing their cooling capacity.44 the need for substantial additional research.50
By way of example, one proponent of MCB has Deployment of MCB could also pose several risks to proposed that it could be accomplished through the both ocean ecosystems and terrestrial landmasses. deployment of up to 1,500 remote-controlled, wind- The reduction of available light and ocean temperature powered “albedo yachts.” It is anticipated these vessels associated with MCB could potentially alter carbon would be capable of generating sufficient electricity uptake of oceans by changing seawater chemistry through turbines dragged in the water to create a mist and phytoplankton production, which could in turn of seawater, which could in turn be lofted 1,000 metres affect other biogeochemical cycles and ocean ecology, into the atmosphere to help create maritime clouds.45 including fisheries and other aspects of marine food webs.51 While it’s possible that this might not Several studies have concluded that MCB deployed significantly affect total biological productivity, there at a large scale could offset the radiative effective is a risk that it could have significant impacts on the 46 from a doubling of atmospheric CO2, while other vertical distribution of productivity, and alter other research has projected a more modest reduction of factors important to the function of marine ecosystems, 35 percent of current radiative forcing.47 However, to such as the horizontal transport of ocean nutrients.52 date, the potential effectiveness of this option has only been assessed with global scale models, which have Moreover, depending on the scale of use, MCB could poor spatial resolution. This precludes assessment also have serious impacts on global precipitation on the scale of individual clouds.48 Moreover, some patterns. While MCB might not have profound studies have found that MCB could even reduce impacts on aggregate global precipitation,53 several studies have projected that deployment could result in “sharp decreases” of precipitation in a number of regions, including in South America, where it could have detrimental impacts on the Amazon rainforest.54 Regional cooling projected in some
49 Alan Robock et al, “Studying geoengineering with natural and anthropogenic analogs” (2013) 121 Climatic Change 445; David Keith & Peter Irvine, “The Science and Technology of Solar Geoengineering: A Compact Summary” in Governance of the Deployment of Solar Geoengineering: Harvard Project on Climate Agreements (November 2018) at 3; L Ahlmet al, “Marine cloud brightening — as effective without clouds” (2017) 17 Atmospheric Chemistry & Physics 13071. Moreover, MCB experiments usually assume uniform distribution of emitted sea salt in ocean grid boxes. However, this fails to take into account sub-grid aerosol coagulation within sea-spray plumes. One study incorporating this factor into simulations concluded that it reduces the Cloud Droplet Nuclear Concentrations (and the resulting radiative effect) by about 50 percent over emission regions, with variations ranging from 10 to 90 percent depending on meteorological conditions. See GS Stuart et al, “Reduced efficacy of MCB geoengineering due to in-plume aerosol coagulation: 44 PW Boyd & CMG Vivian, eds, “High-Level Review of a Wide Range of parameterization and global implications” (2013) 13 Atmospheric Chemistry & Proposed Marine Geoengineering Techniques” (2019) GESAMP Reports Physics 10385. & Studies No 98; John Latham et al, “Marine cloud brightening: regional applications” (2014) 372:2031 Philosophical Transactions Royal Society A at 50 Mark G Lawrence et al, “Evaluating climate geoengineering proposals in 2. the context of the Paris Agreement temperature goals” (2018) 9 Nature Communications, art 3734 at 10; Camilla W Stjern et al, “Response to MCB 45 Stephen Salter, Graham Sortino & John Latham, “Sea-going hardware for in a multi-model ensemble” (2018) 18 Atmospheric Chemistry & Physics 621; the cloud albedo method of reversing global warming” (2008) 366:1882 Stephen H Salter et al, “Engineering Ideas for Brighter Clouds” (2014) 38 Philosophical Transactions Royal Society A 3989; Christopher Mims, “‘Albedo Issues Science & Technology 131. Yachts’ and Marine Clouds: A Cure for Climate Change?”, Scientific American (21 October 2009). 51 Antti-Ilari Partanen et al, “Impacts of sea spray geoengineering on ocean biogeochemistry” (2016) 43:14 Geophysical Research Letters 7600. 46 Cao Long et al, “Geoengineering: Basic science and ongoing research efforts in China” (2015) 6:3–4 Advances in Climate Change Research 188; Latham et 52 Ibid; Nick J Hardman-Mountford et al, “Impacts of light shading and nutrient al, “Global temperature stabilization”, supra note 42 at 3371. enrichment geo-engineering approaches on the productivity of a stratified, oligotrophic ocean ecosystem” (2013) 10:89 J Royal Society Interface. 47 G Bala et al, “Albedo enhancement of marine clouds to counteract global warming: Impacts on the hydrological cycle” (2011) 37:5–6 Climate Dynamics 53 Kari Alterskjær et al, “Sea-salt injections into the low-latitude marine boundary 915. layer? The transient response in three Earth system models” (2013) 118:21 J Geophysical Research: Atmospheres 12,195. 48 H Korhonen, KS Carslaw & S Romakkaniemi, “Enhancement of marine cloud albedo via controlled sea spray injections: a global model study of the 54 Bala et al, supra note 47 at 2. See also A Jones & JM Haywood, “Sea-spray influence of emission rates, microphysics and transport” (2010) 10 Atmospheric geoengineering in the HadGEM2-ES earth-system model: radiative impact and Chemistry & Physics 735. climate response” (2012) 12 Atmospheric Chemistry & Physics 10887.
8 Potential Ocean-based Geoengineering Options
modelling studies could also have impacts on the West A more interventionist approach in sea surface albedo African monsoon and El Niño Southern Oscillation.55 modification has been proposed by Leslie Field et MCB could also result in changes in soil moisture al.63 Their research suggests that the placement of content, manifested in notable areas of drying in sheet-like or granular materials, such as hollow glass South America and the southern United States, while microspheres on Arctic ocean surfaces, could effectuate increasing soil moisture in central Africa and India.56 surface ice albedo modification in the region and help tamp down projected temperature increases.64 The researchers concluded that the use of this glass Microbubbles/Foam microspheres method could increase Arctic ice volumes As far back as 1965, a President’s Science Advisory between 0.5 and one percent per year,65 as well as Committee in the United States suggested that the substantially reducing temperatures in the region.66 impending threat of climate change could be addressed by “spreading very small reflecting particles over large However, very little research on these approaches has oceanic areas” to enhance ocean albedo.57 In 2011, ensued to date,67 and issues abound in terms of their Russell Seitz expanded upon this concept, concluding potential effectiveness and cost.68 Moreover, some that the generation of reflective microbubbles over a researchers have raised concerns about potential portion of the more than 300 million square kilometres risks associated with large-scale deployment of these of fresh and salt water on the earth could potentially options. These could include the potential to exacerbate offset all current radiative forcing associated with ocean acidification by increasing the efficiency of2 CO anthropogenic emissions of CO2, methane, nitrogen absorption in the oceans, potential environmental dioxide and halocarbons.58 He suggested that these impacts associated with artificial surfactants, potential “hydrosols” could be produced by methods such as impacts on oceanic species through temperature expansion of air through vortex nozzles, mechanical effects and reduction of sunlight, and potential shakers or ultrasonic transducers.59 Julian Evans changes in regional precipitation patterns.69 et al.60 and Julia Crook et al.61 have also suggested that increasing ocean albedo through creation of surface bubbles or foam could have salutary impacts CDR Proposals on Arctic ice and temperatures. An experiment conducted as part of the Geoengineering Model OIF Intercomparison Project Testbed also concluded that this approach could effectuate a substantial reduction The world’s oceans sequester approximately one- 62 70 in projected global mean surface temperatures. third of anthropogenic CO2 emissions, with about 80 percent of all atmospheric carbon ending up in
55 Lynn M Russell et al, “Ecosystem Impacts of Geoengineering: A Review for Developing a Science Plan” (2012) 41:4 Ambio 350. 63 L Field et al, “Increasing Arctic Sea Ice Albedo Using Localized Reversible Geoengineering” (2018) 6:6 Earth’s Future 882 at 884. 56 Jones & Haywood, supra note 54 at 10893. 64 Ibid. 57 President’s Science Advisory Committee, Restoring the Quality of Our Environment: Report of the Environmental Pollution Panel 127 (November 65 Ibid at 896. 1965), online:
58 Russell Seitz, “Bright water: hydrosols, water conservation and climate 67 National Research Council, Climate Intervention: Reflecting Sunlight to Cool change” (2011) 105 Climatic Change 365 at 371. Earth (Washington, DC: National Academies Press, 2015) at 129.
59 Ibid at 366. 68 Ivana Cvijanovic, Ken Caldeira & Douglas G MacMartin, “Impacts of ocean albedo alteration on Arctic sea ice restoration and Northern Hemisphere 60 JRG Evans et al, “Can oceanic foams limit global warming?” (2010) 42 climate” (2015) 10:4 Environmental Research Letters at 7; Robert L Olson, Climate Research 155. “Soft Geoengineering: A Gentler Approach to Addressing Climate Change” (2012) 54:5 Environment: Science & Policy for Sustainable Development 29 at 61 Julia A Crook, Lawrence S Jackson & Piers M Forster, “Can increasing 31. albedo of existing ship wakes reduce climate change?” (2016) 121:4 JGR: Atmospheres 1549. 69 Alan Robock, “Bubble, bubble, toil and trouble: An editorial comment” (2011) 105 Climatic Change 383; Gabriel et al, supra note 62 at 606–08; Field et al, 62 Corey J Gabriel et al, “The G4Foam Experiment: global climate impacts of supra note 63 at 900. regional ocean albedo modification” (2017) 17 Atmospheric Chemistry & Physics 595 at 602 (dispersal of highly reflective microbubble “foam” could 70 Laurent Bopp et al, “The Ocean: A Carbon Pump”, Ocean-Climate.org at 12, reduce projected global mean land temperatures from an IPCC RCP6.0 online:
9 Governance of Marine Geoengineering
the oceans at some point in its life cycle.71 The role iron deficiency reduces the amount of carbon that can of oceans as carbon sinks is primarily attributable be exported via the biological pump.78 In support of to two processes. First, the solubility pump drives this proposition, researchers contend that 30 percent absorption of atmospheric carbon due to the of the 80 ppm CO2 drawdown during the last glacial partial pressure differential between the ocean maxima may have been attributable to iron-driven and the atmosphere.72 This can facilitate storage of enhancement of phytoplankton productivity.79 73 CO2 in the oceans over a centennial time scale. The iron hypothesis stimulated substantial interest The second process, and the one most pertinent to in the past few decades in the geoengineering OIF, is the biological pump. The starting point for approach known as OIF. OIF seeks to stimulate net 80 this process is the fixation of dissolved inorganic CO2 phytoplankton growth through dispersal of iron in in shallow ocean waters by phytoplankton in the surface waters in areas characterized by high-nitrate, 81 process of photosynthesis, converting the CO2 into low-chlorophyll (HNLC) conditions. OIF is one of the an organic form.74 While the bulk of fixed organic few ocean-based geoengineering approaches that has carbon is remineralized in the upper layers of the moved beyond conceptual development and modelling ocean and released to the atmosphere, a portion to the stage of field testing.82 There have been 15 field is transported downwards by the sinking of dead OIF experiments conducted to date, although some phytoplankton biomass and zooplankton fecal pellets of these were for non-geoengineering purposes.83 into the deep ocean and sediments (i.e., ocean floor).75 Carbon sinking to the level of sediments can be Some early assessments projected that OIF might sequestered for decades to centuries, or even longer.76 be able to offset as much as 25 percent of the world’s annual carbon emissions.84 However, In the 1980s, oceanographer John Martin advanced additional research has resulted in more refined the “iron hypothesis,” contending that phytoplankton estimates of the overall efficiency of phytoplankton growth in regions such as the Southern (Antarctic) uptake in response to iron seeding declining.85 Ocean and equatorial Pacific are limited by iron As a consequence, many recent analyses have deficiencies, obviating the ability of these organisms to concluded that deployment of OIF, even at very utilize excess nitrate/phosphate.77 By implication, this
71 Howard Herzog, Ken Caldeira & John Reilly, “An Issue of Permanence: Assessing the Effectiveness of Temporary Carbon Storage” (2003) 59:3 Climatic Change 293 at 302. It has been estimated that atmospheric concentrations of CO2 would be one-third higher absent ocean storage of 78 De La Rocha & Passow, supra note 74 at 87. carbon. See Richard Sanders et al, “The Biological Carbon Pump in the North Atlantic” 129(B) Progress in Oceanography 200. 79 PW Boyd et al, “Mesoscale Iron Enrichment Experiments 1993-2005: Synthesis and Future Directions” (2007) 315 Science 612. 72 Louis A Legendre et al, “The microbial carbon pump concept: Potential biogeochemical significance in the globally changing ocean” (2009) 134 80 To date, the most widely discussed form of iron to utilize in OIF is ferrous Progress in Oceanography 432. sulfate, with other options including iron lignosite or solid forms of iron. See KH Coale, “Iron Fertilization” in Steve A Thorpe & Karl K Turekian, Encyclopedia 73 Stephen A Rackley, “Ocean storage” in Carbon Capture and Storage, 1st ed of Ocean Sciences, 1st ed (Amsterdam: Elsevier Science, 2001). (Oxford, UK: Butterworth-Heinemann, 2010), ch 12. 81 Ken O Busseler et al, “Ocean Iron Fertilization — Moving Forward in a 74 Stephen A Rackley, “Ocean storage” in Carbon Capture and Storage, 2nd ed Sea of Uncertainty” (2008) 319 Science 162; Phillip W Boyd et al, “A (Oxford, UK: Butterworth-Heinemann, 2017), ch 20; PM Williams, H Oeschger mesoscale phytoplankton bloom in the polar Southern Ocean stimulated by & P Kinney, “Natural Radiocarbon Activity of the Dissolved Organic Carbon iron fertilization” (2000) 407 Nature 695. Approximately 20 percent of the in the Northeast Pacific Ocean” (1969) 224 Nature 256. Approximately half world’s oceans are classified as HNLC. See Jonathan William Pitchford & of carbon fixation via photosynthesis is attributable to phytoplankton. See John Brindley, “Iron limitation, grazing pressure and oceanic high nutrient- Sallie W Chisholm et al, “Dis-Crediting Ocean Fertilization” (2001) 294:5541 low chlorophyll (HNLC) regions” (1999) 21:3 J Plankton Research 525. Science 309. This is true despite the fact that marine phytoplankton comprise HNLC regions are predominantly in the subarctic Pacific, large regions of the less than one percent of the earth’s total photosynthetic biomass. See CL De eastern equatorial Pacific and the Southern Ocean. See Coale, supra note La Rocha & U Passow, “The Biological Pump” in Heinrich D Holland & Karl K 80 at 333. The Southern Ocean is the largest HNLC region of the global Turekian, eds, Treatise on Geochemistry, 2nd ed, vol 8 (Amsterdam: Elsevier, ocean. See Stéphane Blain et al, “Effect of natural iron fertilization on carbon 2004) 93. sequestration in the Southern Ocean” (2007) 446 Nature 1070.
75 Andy Ridgwell, “Evolution of the ocean’s ‘biological pump’” (2011) 108:40 82 Jeffrey McGee, Kerryn Brent & Wil Burns, “Geoengineering the oceans: an PNAS 16485 at 16485; Jennie Dixon, “Iron Fertilization: A Scientific Review emerging frontier in international climate change governance” (2018) 10:1 with International Policy Recommendations” (2009) 32:2 Environs 321 at Austl J Maritime & Ocean Affairs 67. 324–25. 83 Ibid. 76 Victor Smetacek et al, “Deep carbon export from a Southern Ocean iron- fertilized diatom bloom” (2012) 487 Nature 313. 84 Hugh Powell, “Fertilizing the ocean with iron” (2008) 46:1 Oceanus 4.
77 JH Martin et al, “Testing the iron hypothesis in ecosystems of the equatorial 85 United Nations Educational, Scientific and Cultural Organization & Pacific Ocean” (1994) 371 Nature 123; John H Martin, “Glacial-Interglacial Intergovernmental Oceanographic Commission, Ocean Fertilization: A CO2 Change: The Iron Hypothesis” (1990) 5:1 Paleoceanography 1. Scientific Summary for Policy Makers (2010).
10 Potential Ocean-based Geoengineering Options
large scales, might only sequester between less There have also been proposals to stimulate ocean 86 than a gigaton or a few gigatons of CO2 annually. productivity through macronutrient fertilization. For example, in ocean regions where the limiting OIF could also pose substantial environmental nutrient is nitrogen, the addition of nitrogen-rich urea and social risks. Fertilization could substantially might stimulate higher phytoplankton biomass.94 alter ecological community composition in seeded However, there are also serious potential risks to areas.87 The designed floristic shift to production assess in this context, including the potential for of larger, bloom-forming phytoplankton could creating hypoxic or anoxic environments that could result in fundamental alteration of the base threaten marine species,95 declines in phytoplankton of the food web and alter the biogeochemical diversity,96 and potential for eutrophication and function of marine communities.88 production of toxin-producing dinoflagellates.97
Fertilization could also rob substantial expanses of downstream ecosystems of critical nutrients, Artificial Upwelling/Downwelling and thus decrease primary production in those Artificial upwelling seeks to stimulate primary areas.89 This could negatively impact production production in marine environments by drawing of marine resources such as fish in downstream nutrient-rich water from beneath the photic zone to regions, with potentially negative impacts on the surface.98 As is the case with OIF, stimulation of livelihoods.90 Moreover, it could result in a net decline phytoplankton production could lead to a drawdown in phytoplankton productivity, and thus negatively of atmospheric CO2 through the sinking of a portion impact the global carbon budget.91 Other potential of particulate organic carbon to the ocean floor, impacts of OIF could include proliferation of toxic and sequestration for decades or centuries.99 It algal blooms that could threaten ocean ecosystems92 might also produce co-benefits, including increases and the exacerbation of ocean acidification.93 in fish production and cooling of coral reefs.100
86 The Royal Society, Greenhouse Gas Removal (2018) (“upper limit for ocean iron fertilisation is a CO2 sink of not more than 3.7 GtCO2 annually” at 44), online:
87 Caitlin G McCormack et al, “Key impacts of climate engineering on biodiversity and ecosystems, with priorities for future research” (2016) 13 J Integrative Environmental Science 103 at 115. 94 Uday Bhan Singh & AS Ahluwalia, “Microalgae: a promising tool for carbon 88 Strong et al, supra note 86 at 256; Michelle Allsopp et al, “A scientific critique sequestration” (2013) 18 Mitigation & Adaptation Strategies Global Change of oceanic iron fertilization as a climate change mitigation strategy” (2007) 73 at 79; Patricia Glibert et al, “Ocean iron fertilization for carbon credits Greenpeace Research Laboratories Technical Note 07/2007 at 11. poses high ecological risks” (2008) 56 Marine Pollution Bull 1049 at 1051.
89 Christine Bertram, “Ocean iron fertilization in the context of the Kyoto protocol 95 Julia Mayo-Ramsay, “Environmental, legal and social implications of ocean and the post-Kyoto process” (2010) 38 Energy Policy 1130 at 1133; John J urea fertilization: Sulu sea example” (2010) 34 Marine Policy 831 at 833; Cullen & Philip W Boyd, “Predicting and verifying the intended and unintended Glibert et al, supra note 94 at 1051. consequences of large-scale ocean iron fertilization” (2008) 364 Marine Ocean Ecology 295 at 298. 96 Glibert et al, supra note 94 at 1051.
90 Anand Gnanadesikan et al, “Effects of patch ocean fertilization on 97 Secretariat of the Convention on Biological Diversity, “Scientific Synthesis of the atmospheric carbon dioxide and biological production” (2003) 17:2 Global Impacts of Ocean Fertilization on Marine Biodiversity” (2009) CBD Technical Biogeochemical Cycles, art 1050 at 19–10; Bertram, supra note 89 at 1133. Series No 45 at 31.
91 Strong et al, supra note 86 at 244. 98 Susie J Bauman et al, “Augmenting the Biological Pump: The Shortcomings of Geoengineered Upwelling” (2015) 27:3 Oceanography at 17; Andrew 92 Randall S Abate & Andrew B Greenlee, “Sowing Seeds Uncertain: Ocean Yool, “Low efficiency of nutrient translocation for enhancing oceanic uptake of Iron Fertilization, Climate Change, and the International Environmental Law carbon dioxide” (2009) 114:C8 J Geophysical Research (Oceans) at 2–3. Framework” (2010) 27 Pace Environmental L Rev 555 at 567; Ian SF Jones, “Contrasting micro- and macro-nutrient nourishment of the ocean” (2011) 425 99 Yiwen Pan et al, “Achieving Highly Efficient Atmospheric CO2 Uptake by Marine Ecology Progress Series 281 at 291; Bertram, supra note 89 at 1132. Artificial Upwelling” (2018) 10 Sustainability, art 664 at 1; Phillip Williamson et al, “Ocean Fertilization for Geoengineering: A Review of Effectiveness, 93 Andreas Oschlies et al, “Side effects and accounting aspects of hypothetical Environmental Impacts and Emerging Governance” (2017) 90 Process Safety & large-scale Southern Ocean iron fertilization” (2010) 7 Biogeoscience Environmental Protection 475 at 479. 4017 (OIF could reduce pH in the Southern Ocean an additional 0.15 units compared to current projections by 2110, at 4026). 100 Boyd & Vivian, supra note 44, at 61.
11 Governance of Marine Geoengineering
A range of devices has been proposed to facilitate be 0.03°C, 0.07°C and 0.23°C higher than under a the upwelling process, including salt fountains,101 control experiment’s conditions, when upwelling airlift pumps102 and wave-powered systems.103 is ceased after 10, 20 and 50 years, respectively.107
Research to date has indicated that ocean upwelling, Ocean upwelling could also pose risks to ocean
even at large-scale deployment, would yield relatively ecosystems. The drawdown of CO2 into marine modest benefits in terms of carbon uptake by the environments could exacerbate ocean acidification,108 oceans, probably less than one gigaton annually.104 potentially decreasing ocean pH by 0.15 units beyond Some studies have even concluded that upwelling present acidification projections.109 Artificial upwelling could result in a net increase in atmospheric could also substantially restructure ocean ecosystems, 105 concentrations of CO2. Moreover, should upwelling including favouring larger phytoplankton, such as be stopped at some point, it could result in a rapid diatoms,110 and resulting in a shift from oligotrophic net increase in global temperatures. This is because (nutrient-poor) to eutrophic (nutrient-rich) species.111 additional heat uptake of the planet associated with artificial upwelling would be reversed with By contrast, ocean downwelling proposals would
the termination of deployment on a decadal time seek to increase the rate of CO2 transfer to deep ocean scale, with the extra heat making its way back to regions by enhancing the transport of carbon-rich cold the sea surface.106 For example, Andreas Oschlies et water into the deep ocean, a process known as the al. conducted a simulated experiment of artificial “solubility pump.” To do so, downwelling options focus upwelling and concluded that temperatures could on approaches that increase downwelling currents, primarily by utilizing pumps that cool surface waters.112 However, several studies have concluded that this 101 The perpetual salt fountain would seek to induce nutrient upwelling by inserting approach would entail high costs and have a minimal a pipe connecting deep seawater and surface seawater, then filling the pipe 113 impact on atmospheric concentrations of CO2. with low-salinity deep seawater. Because the salinity of water inside the pipe would be lower than the outside, it would create a buoyant force via convective motion that would drive nutrients to the upper levels of the ocean. See Shigenao Maruyama et al, “Artificial Upwelling of Deep Seawater Using Ocean Alkalinity/Ocean Liming the Perpetual Salt Fountain for Cultivation of Ocean Desert” (2004) 60:4 J Oceanography 563. See also H Stommel et al, “An oceanographical curiosity: A number of researchers have proposed adding lime the perpetual salt fountain” (1956) 3:2 Deep Sea Research 152. This option would likely be viable only in certain regions, including the Northern Pacific (in the form of calcium oxide, calcium hydroxide, Ocean, and some areas of the tropics and sub-tropics. See Dahai Zhang, or calcium carbonate),114 or silicate minerals such “Reviews of power supply and environmental energy conversions for artificial upwelling” (2016) 56 Renewable & Sustainable Energy Rev 659 at 667.
102 An airlift pump is powered by compressed gas, usually air, which is injected into the lower part of a pipe that transports a liquid that utilizes fluid pressure to facilitate moving liquid in ascendant air flows in the same direction as the air. See Wei Fan, “Experimental study on the performance of an air-lift pump for artificial upwelling” (2013) 59 Ocean Engineering 47 at 48. Researchers have mapped out a conceptual airlift pump system to upwell deep ocean water, using a submerged vertical pipe and introducing compressed air into the pipe near the upper end. See NK Liang & HK Peng, “A study of air-lift artificial upwelling” (2005) 32 Ocean Engineering 731. See also Qicheng Meng et 107 Oschlies et al, supra note 104 at 4. al, “A simplified CFD model for air-lift artificial upwelling” (2013) 72 Ocean Engineering 267. 108 James E Lovelock & Chris G Rapley, “Ocean pipes could help the Earth to cure itself” (2007) 449 Nature 403. 103 A wave-powered pump utilizes a buoy and a flapper valve that opens and closes inside the pipe. The hingeing is designed to open and close at opposite 109 Bauman et al, supra note 98 at 21. phases of the wave cycle, causing water to rise upward. See Kern E Kenyon, “Upwelling by a Wave Pump” (2007) 63 J Oceanography 327. See also 110 L Zarauz et al, “Changes in plankton size structure and composition, during the Wei Fan et al, “Experimental study on the performance of a wave pump for generation of a phytoplankton bloom, in the central Cantabrian Sea” (2009) artificial upwelling” (2016) 113 Ocean Engineering 192. 31:2 J Plankton Research 193.
104 Andreas Oschlies et al, “Climate engineering by artificial ocean upwelling: 111 Bauman et al, supra note 98 at 21. Channeling the sorcerer’s apprentice” (2010) 37 Geophysical Research Letters L04701 at 4; Philippe Ciais et al, “Carbon and Other Biogeochemical Cycles” 112 S Zhou & PC Flynn, “Geoengineering Downwelling Ocean Currents: A Cost in IPCC, Climate Change 2013: The Physical Science Basis, Contribution of Assessment” (2005) 71 Climatic Change 203 at 206–13. Working Group I to the Fifth Assessment Report of the IPCC 550; Pan et al, supra note 99 at 1. 113 Lenton & Vaughan, supra note 26 at 5553; The Royal Society, Greenhouse Gas Removal (2018) at 65, online:
12 Potential Ocean-based Geoengineering Options
as olivine,115 to ocean surfaces. This approach is There is a wide range of estimates for the potential usually referred to as artificial ocean alkalization sequestration capacity associated with AOA. Tim (AOA), or “enhanced ocean alkalinity.” Oceanic Lenton and Nem Vaughan concluded that AOA using dissolution of these minerals would increase total limestone could produce a modest drawdown of CO2 alkalinity.116 This would, in turn, result in chemical of 30 ppm relative to a baseline of 430 ppm.124 Other transformation of CO2, and storage in the ocean in studies, however, concluded that CO2 drawdown with the form of bicarbonate and carbonate ions.117 For lime-based mineral dispersal could be much more example, the dissolution of one mole of calcium effective, with drawdown ranges from 166 to 450 ppm carbonate is accompanied by the uptake of one by 2100.125 Peter Köhler et al. projected that olivine- 118 mole of CO2. AOA would accelerate processes that based AOA could compensate for about nine percent 126 would otherwise remove CO2 from the atmosphere of anthropogenic CO2 emissions. However, all of on time scales of up to thousands of years.119 these projections should be approached with great caution, as AOA research to date has not advanced A flotilla of ships could be deployed to distribute finely beyond desktop techno-economic assessment, or ground limestone in selected parts of the oceans,120 or bench-scale laboratory work.127 AOA could also help limestone could be dissolved and pumped to the ocean to reduce the growing threat of ocean acidification,128 where local water supplies are readily available.121 An providing a potentially very important co-benefit. alternative option to enhance ocean alkalinity would be through dissolution of carbonate materials exposed There would also be some substantial logistical and to flue gas CO2 and seawater. Research suggests that economic challenges associated with large-scale contacting carbonate materials with seawater and deployment of AOA. AOA operations might require flue gases would increase alkalinity in the effluent increasing the global production of lime by 23 discharged back to the ocean.122 In the case of silicate times,129 in the case of olivine.130 Substantial energy minerals, such as olivine, grains could be scattered requirements associated with production of lime from by vessels in the open ocean, or crushed olivine could limestone, as well as associated CO2 emissions, may be scattered in coastal waters, taking advantage make this process impractical.131 Mining, transport and of high abrasion of materials in these zones.123 discharge of quicklime could cost between US$0.5 and US$2.8 trillion annually, equivalent to between 0.7 and 4.0 percent of GDP annually132 or $72 to $125 per ton of sequestered carbon.133 Olivine dissolution in oceans
115 Lennart T Bach et al, “CO2 Removal With Enhanced Weathering and Ocean Alkalinity Enhancement: Potential Risks and Co-benefits for Marine Pelagic Ecosystems” (2019) 1 Frontiers in Climate art 7; P Köhler et al, 124 Lenton & Vaughan, supra note 26 at 5553. “Geoengineering impact of open ocean dissolution of olivine on atmospheric CO2 surface ocean pH and marine biology” (2013) 8 Environmental Research 125 Ellias Feng et al, “Could artificial ocean alkalization protect tropical coral Letters 014009; J Hartmann et al, “Enhanced chemical weathering as a ecosystems from ocean acidification?” (2016) 11:7 Environmental Research geoengineering strategy to reduce atmospheric carbon dioxide, supply Letters 074008 at 9. nutrients, and mitigate ocean acidification” (2013) 51 Rev Geophysics 113. 126 Peter Köhler et al, “Geoengineering impact of open ocean dissolution of 116 Miriam Ferrer González & Tatiana Ilyina, “Impacts of artificial ocean olivine on atmospheric CO2, surface ocean pH and marine biology” (2013) alkalization on the carbon cycle and climate in Earth system simulations” 8:1 Environmental Research Letters 014009 at 8. (2016) 43 Geophysical Research Letters 6493. 127 Stefano Caserini et al, “Affordable CO2 negative emission through hydrogen 117 Phil Renforth & Gideon Henderson, “Assessing ocean alkalinity for carbon from biomass, ocean liming, and CO2 storage” (2019) Mitigation & Adaptation sequestration” (2017) 55 Rev Geophysics 636 at 637. Stategies; Renforth & Henderson, supra note 117 at 32.
118 LDD Harvey, “Mitigating the atmospheric CO2 increase and ocean acidification 128 Harvey, supra note 118 (application of 4 gigatons of limestone per year by adding limestone powder to upwelling regions” (2008) 113 J Geophysical beginning in 2020 could “restore about 20% of the difference between the Research C04028 at 2. minimum pH and preindustrial pH by 2220 and restore about 40% of the difference by 2500” at 20); Tatiana Ilyina et al, “Assessing the potential of 119 D Archer, “Fate of fossil fuel CO2 in geologic time” (2005) 110 J Geophysical calcium-based ocean alkalization to mitigate rising atmospheric CO2 and Research C09S05 at 3. ocean acidification” (2013) 40 Geophysical Research Letters 5909; Boyd & Vivian, supra note 44 at 64. 120 Lenton & Vaughan, supra note 26 at 5553. 129 Ilyina et al, supra note 128 at 5911. 121 Haroon S Kheshgi, “Sequestering Atmospheric Carbon Dioxide By Increasing Ocean Alkalinity” (1995) 20:9 Energy 915 at 917. 130 González & Ilyina, supra note 116 at 6494.
122 Phil Renforth, “The negative emission potential of alkaline materials” (2018) 10 131 Renforth & Henderson, supra note 117 at 3. Nature Communications 1 at 2; GH Rau & K Caldeira, “Enhanced carbonate dissolution: A means of sequestering waste CO2 as ocean bicarbonate” (1999) 132 François S Paquay & Richard E Zeebe, “Assessing possible consequences of 40:17 Energy Conversion & Management 1803. ocean liming on ocean pH, atmospheric CO2 concentration and associated costs” (2013) 17 Intl J Greenhouse Gas Control 183 at 187. 123 Jasper Griffioen, “Enhanced weathering of olivine in seawater: The efficiency as revealed by thermodynamic scenario analysis” (2017) 575 Science Total 133 P Renforth et al, “Engineering challenges of ocean liming” (2013) 60 Energy Environment 536. 442 at 448.
13 Governance of Marine Geoengineering
could also be extremely costly, given the need to finely included under the blue carbon rubric. The rationale grind the mineral, although costs could be reduced is that some macroalgae grow on sandy sediments, by application in more accessible coastal and shelf with burial rates for carbon of 0.4 percent of net environments.134 Estimates of costs associated with primary productivity. Moreover, there are substantial using silicate rocks to achieve a 50 ppm drawdown amounts of production export of particulate organic 142 of CO2 could be in the range of US$60 to US$600 and dissolved organic carbon. The current natural trillion.135 To put this number in perspective, global blue carbon sink is characterized as “huge,” perhaps GDP in 2019 is projected to be over US$88 trillion.136 20 to 50 percent of the optimistic projections for the sequestration potential of ocean fertilization, and 18 Finally, AOA would pose a host of potential risks percent of ocean carbon sequestration in sediments.143 to ocean ecosystems. The process could potentially disadvantage marine organisms that are not able There has been growing interest in the potential to concentrate carbon within their cells under role of enhancing blue carbon sinks to effectuate conditions of increased alkalinity.137 AOA could also atmospheric CDR. Recent research has indicated that cause spontaneous precipitation of calcium hydroxide. it may be possible to more than double current rates This might adversely impact coral reefs, because of sequestration through restoration and creation they are sensitive to high levels of turbidity.138 The of coastal ecosystems.144 Moreover, there is serious addition of non-carbon alkaline minerals to the oceans concern about declining rates of carbon sequestration could also alter primary and second production, in many of these ecosystems, due to both climate thereby increasing contaminant accumulation change and other anthropogenic stressors.145 in food chains via the release of minerals such as cadmium, nickel, chromium, iron and silicon.139 There is substantial potential to expand kelp forests, seaweed beds and mangroves, including in deeper waters.146 Beyond the potential carbon Blue Carbon sequestration benefits that could flow from taking The term “blue carbon” refers to carbon captured by these measures, there is also the potential for phytoplankton, as well as marine coastal macrophytes, substantial co-benefits, such as improved wastewater including mangroves, salt marshes, seagrass and treatment147 and alternatives to fossil fuels for seaweed assemblages.140 Macroalgae is usually not energy production,148 including providing feedstocks included under the rubric of blue carbon, because most grows on rocks, where burial is precluded.141 However, some researchers have contended that it should be
142 Dorte Krause-Jensen & Carlos M Duarte, “Substantial role of macroalgae in 134 Francesc Montserrat et al, “Olivine Dissolution in Seawater: Implications for marine carbon sequestration” (2016) 9 Nature Geoscience 737. CO2 Sequestration through Enhanced Weathering in Coastal Environments” (2017) 51 Environmental Science & Technology 3960 at 3961. 143 Sophia C Johannessen & Robie W Macdonald, “Geoengineering with seagrasses: is credit due where credit is given?” (2016) 11 Environmental 135 Lyla L Taylor et al, “Enhanced weathering strategies for stabilizing climate and Research Letters 113001 at 1. averting ocean acidification” (2016) 6 Nature Climate Change 402 at 406. 144 National Academy of Sciences, Negative Emissions Technologies and Reliable 136 World Population Review, “GDP Ranked by Country 2019”, online:
137 Caserini et al, supra note 127; Gideon Henderson et al, “Decreasing 145 Ibid; Alexander Pérez et al, “Factors influencing organic carbon accumulation Atmospheric CO2 by Increasing Ocean Alkalinity” (2008) University of Oxford in mangrove ecosystems” (2018) 14 Biology Letters 20180237 at 1–5; Department of Earth Sciences and the James Martin 21st Century Ocean Elizabeth Mcleod et al, “A blueprint for blue carbon: toward an improved Institute at 14. understanding of the role of vegetated coastal habitats in sequestering CO2” (2011) 9:10 Frontiers in Ecology & Environment 552 at 556. 138 Feng et al, supra note 125 at 7. 146 Ik Kyo Chung et al, “Installing kelp forests/seaweed beds for mitigation and 139 Gattuso et al, supra note 40 at 11; David P Edwards et al, “Climate change adaptation against global warming: Korean Project Overview” (2013) 70:5 mitigation: potential benefits and pitfalls of enhanced rock weathering in ICES J Marine Science 1038; Calvyn FA Sondak et al, “Carbon dioxide tropical agriculture” (2017) 13:4 Biology Letters, art 337 at 4. mitigation potential of seaweed aquaculture beds (SABs)” (2017) 29:5 J Applied Psychology 2363 at 2368. 140 Francisco Arena & Fátima Vaz-Pinto, “Marine Algae as Carbon Sinks and Allies to Combat Global Warming” in Leonel Pereira & JM Neto, eds, Marine 147 SP Shukla et al, “Atmospheric Carbon Sequestration Through Microalgae: Algae: Biodiversity, Taxonomy, Environmental Assessment and Biotechnology Status, Prospects, and Challenges” in JS Singh & G Seneviratne, eds, Agro- (Boca Raton, FL: CRC Press, 2014) 178 at 183; NOAA, National Ocean Environmental Sustainability (Amsterdam: Springer Nature, 2017) 219 at 230. Service, “What is Blue Carbon?”, online:
14 Potential Ocean-based Geoengineering Options
for the BECCS process that would avoid or lessen dependence on terrestrial bioenergy crops.149
However, there are many challenges to enhancing sequestration through blue carbon strategies, including the high financial cost of some options,150 as well as ecological constraints to expanding the scope of blue carbon sources, especially in open- ocean environments.151 Enhancing blue carbon processes may also pose risks to ocean ecosystems, including alteration of ocean surface albedo and potential negative impacts on marine ecosystems associated with ocean temperature changes,152 and potential production of toxins and algal blooms that could negatively impact ocean ecosystems.153
As discussed above, marine geoengineering proposals will likely place new demands upon the international law system to manage its risks and opportunities. The following section therefore examines how current international law might govern ocean geoengineering research, field testing and eventual deployment. It looks at what current rules exist that might apply to ocean geoengineering and what changes in rules might be needed.
149 Colin M Beal et al, “Integrating Algae with Bioenergy Carbon Capture and Storage (ABECCS) Increases Sustainability” (2018) 6 Earth’s Future 524; Charles H Greene et al, “Geoengineering, marine microalgae, and climate stabilization in the 21st century” (2016) 5 Earth’s Future 278 at 279–80; Andrew J Cole et al, “Using CO2 to enhance carbon capture and biomass applications of freshwater microalgae” (2014) 6:6 Global Change Biology: Bioenergy 637.
150 B Bharathiraja et al, “Aquatic biomass (algae) as a future feed stock for bio-refineries: A review on cultivation, processing and products” (2015) 47 Renewable & Sustainable Energy Rev 634 at 637–38; Beal et al, supra note 149 at 533.
151 Rackley, supra note 74 at 538.
152 Antoine de Ramon N’Yeurt et al, “Negative Carbon via Ocean Afforestation” (2012) 90:6 Process Safety & Environmental Protection 467 at 472.
153 Marc Y Menetrez, “An Overview of Algae Biofuel Production and Potential Environmental Impact” (2012) 46:13 Environmental Science & Technology 7073 at 7079.
15
International Law and Marine Geoengineering
The discussion above outlines a range of potential consider the extent to which the international law marine geoengineering proposals. The proposals have system will be able to adapt to govern the risks and important differences in terms of purpose (i.e., CDR, opportunities presented by technologies that can, SRM or both), scale of application, likely effectiveness, at the moment, only be pictured in the abstract. international cooperation required and the intensity of environmental and social risk. It is also important to keep in mind that aside from OIF and MCB, most International Law and the Oceans marine geoengineering proposals have not yet moved beyond the lab-based stage of conceptual development There are various rules of international law and modelling. It would likely take a decade or more potentially relevant to the research, field testing and of further research and development before these implementation of marine geoengineering. The world’s options could be deployed at significant scale. oceans are governed by a network of international agreements to which various states have consented to It is also likely that any approaches that might be bound. At the outset, we can consider agreements ultimately be adopted will look quite different from that are wide-ranging or global in scope in terms of those currently in circulation in the scientific literature. the geographic scale of their operation and types of The following analysis of international law relevant issues covered. These global agreements have a wide to marine geoengineering must therefore partly scale of application and provide general rules and
17 Governance of Marine Geoengineering
principles for how states should conduct activities governance is further limited to specific geographical in the world’s oceans. Two primary examples are regions. Framework agreements and customary the LOSC and the 1992 United Nations Convention international law establish general rules that apply to on Biological Diversity (CBD).154 Moving downwards most or all states, but are often difficult to interpret and in scale, various sectoral agreements govern specific apply to specific scenarios. They may be particularly marine environmental and resource use issues, such difficult to apply to new or novel problems that were as the 1972 Convention on the Prevention of Marine not anticipated at the time the agreement was formed. Pollution by Dumping of Wastes and Other Matter There are also limited mechanisms to monitor and (London Convention),155 or activities in specific regions, enforce state compliance with rules in framework and such the 1959 Antarctic Treaty System, various regional sectoral agreements, which often apply to conduct seas conventions and regional fisheries management in high-seas areas that are difficult and expensive organizations (RFMOs). Finally, in parallel with all to observe. Significant weaknesses therefore exist these international agreements are rules of customary in international law that limit its capacity to govern international law. These rules establish binding legal certain marine environmental issues and activities. rights and obligations for states concerning activities conducted within or affecting the world’s oceans, The aim of this section is to help guide geoengineering such as the duty to prevent activities from causing researchers to assess the extent to which this significant transboundary harm and harm to areas patchwork of treaty and customary international law beyond the national jurisdiction of states, such as the rules, as they are currently formulated, can govern high seas.156 Viewed together, framework agreements, the research, field testing and implementation of sectoral agreements and customary international law marine geoengineering. It considers the extent to form a legal patchwork for oceans governance that which existing rules of international law provide has arisen in response to issues such as maritime substantive and procedural obligations relevant to access, fisheries access and management, sea-bed marine geoengineering, including whether states mining, shipping pollution, undersea cables and MSR. may engage in marine geoengineering activities, and rules concerning how such activities ought This patchwork is, however, incomplete and to be conducted. This analysis seeks to inform contains notable holes. States have yet to develop governance scholars and policy makers on gaps and robust international laws to govern some key limitations in the current legal framework with a marine environmental issues such as biodiversity view to further developing international law for the conservation,157 marine bioprospecting (i.e., the governance of marine geoengineering activities. exploitation of marine genetic resources),158 ocean acidification and the impacts of climate change on This section takes an integrated approach to the marine environment.159 Sectoral agreements often analyzing international law relevant to the have limited membership, based on state interest in research, field testing and implementation of the issue the agreement seeks to govern. The capacity marine geoengineering. To avoid the problem of of regional agreements to contribute to oceans compartmentalizing that may arise from separately considering each of the international law regimes that might be implicated by marine geoengineering, 154 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (entered into or by separately analyzing the application of force 29 December 1993) [CBD]. international law to each individual proposal, this 155 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 UNTS 138 (entered into force 30 section instead seeks to provide a synthetic analysis August 1975) [London Convention]. anchored around the following four questions:
156 Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] ICJ Rep 226 at 241–42 [Threat or Use of Nuclear Weapons]. → What is the purpose of the marine geoengineering activity? 157 See Robin M Warner, “Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea” → Where will the marine geoengineering activity be in Donald R Rothwell et al, eds, The Oxford Handbook of the Law of the Sea conducted and by whom? (Oxford, UK: Oxford University Press, 2015). → What are the likely impacts of the activity? 158 See Joanna Mossop, “Marine Bioprospecting” in Rothwell et al, supra note 157 at 825. → Can a state or other actor be held liable if marine 159 See Tim Stephens, “Warming Waters and Souring Seas: Climate Change geoengineering activities inflict damage? and Ocean Acidification” in Rothwell et al, supra note 157 at 777; Robin Warner, “Oceans in Transition: Incorporating Climate-Change Impacts These questions reflect the fact that marine into Environmental Impact Assessment for Marine Areas Beyond National Jurisdiction” (2018) 45:31 Ecology LQ 31 at 36–48. geoengineering activities may be conducted
18 International Law and Marine Geoengineering
by different actors, in different locations and commonly accepted definition of “scientific research” for different purposes. They also reflect the fact in international law that might otherwise be used that different proposals are also likely to present to interpret this term.163 However, MSR is commonly different types and magnitudes of risk. construed as “any form of scientific investigation, fundamental or applied, concerned with the marine environment.”164 According to Tim Stephens and What Is the Purpose of the Marine Don Rothwell, MSR includes research activities for Geoengineering Activity? which the object of study is the ocean and marine environment, such as “physical oceanography, marine chemistry and biology, scientific ocean drilling and The purpose of a marine geoengineering activity is coring, geological and geophysical research and other significant because different purposes may require activities that have a scientific purpose.”165 Rules under the application of different rules of international law. Part XIII of the LOSC will therefore apply to marine Marine geoengineering activities can be conducted for geoengineering research activities that involve in three broad purposes: scientific research, to respond situ research in the marine environment, especially to climate change and associated impacts, and to where that research will enhance knowledge of the enhance marine productivity. Of course, some marine marine environment.166 This would include research geoengineering activities might be conducted with one activities to assess marine conditions for engaging in a purpose in mind but have co-benefits. For example, marine geoengineering activity (for example, assessing ocean fertilization can be conducted primarily to water temperature and nutrient density for ocean enhance marine productivity and enhance fish stocks; fertilization or marine upwelling), or the testing of however, it may also have a co-benefit of drawing delivery mechanisms.167 The definition of MSR under down CO2. Similarly, enhanced kelp farming may the LOSC does not distinguish between research be proposed to increase the CO2 uptake of existing conducted purely to enhance scientific knowledge, carbon sinks, but might also boost kelp stocks for or research for applied and/or commercial purposes, food, agriculture or pharmaceutical purposes.160 such as the exploitation of natural resources. Marine geoengineering field tests, such as the placement of ferrous sulphate for OIF or lime for ocean alkalinity Research Activities enhancement, will likely also qualify as MSR. To encourage understanding of the natural world, international agreements often distinguish However, not all marine geoengineering research scientific research activities from non-research activities will qualify as MSR. Research activities activities. They commonly provide specific rules may fall outside the scope of Part XIII if they are not on scientific research activities that might be conducted in the ocean, and/or do not primarily aim relevant to marine geoengineering research. Various to enhance understanding of the marine environment. sectoral regimes contain provisions for scientific For example, marine geoengineering research research.161 However, the most detailed and generally conducted in a laboratory would be beyond the applicable rules of this type are contained in Part scope of the LOSC. Another example would be SRM XIII of the LOSC, which establishes rules to promote research activities conducted over the ocean. These and guide the conduct of MSR activities.162 would arguably not constitute MSR if their objective
The LOSC doesn’t have a specific definition of 163 For further discussion of this issue in the context of whaling, see Brendan activities that fall within MSR, and there is no Gogarty & Peter Lawrence, “The ICJ Whaling Case: missed opportunity to advance the rule of law in resolving science-related disputes in global commons?” (2017) 77:1 Heidelberg J Intl L 165.
160 See Chung et al, supra note 146; Tim Flannery, Sunlight and Seaweed: An 164 Patricia Birnie, “Law of the Sea and Ocean Resources: Implications for Marine Argument for How to Feed, Power and Clean up the World (Melbourne: Text Scientific Research” (1996) 10:2 Intl J Marine & Coastal L 229 at 241–42 Publishing, 2017). [emphasis added].
161 See e.g. Convention for the Protection of the Marine Environment of the 165 Tim Stephens & Donald R Rothwell, “Marine Scientific Research” in Rothwell et North-East Atlantic, 22 September 1992, 32 ILM 1068, art 8 (entered into al, supra note 157, 559 at 562. force 25 March 1998) [OSPAR Convention]; Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 166 See Alexander Proelss & Chang Hong, “Ocean Upwelling and International 16 February 1976, 15 ILM 290, art 13 (entered into force 12 February Law” (2012) 43:4 Ocean Development & Intl L 371 at 373. Proelss and Hong 1978) [Barcelona Convention]; Convention for the Protection of the Natural suggest that large-scale deployment activities aimed at delivering negative Resources and Environment of the South Pacific Region, 25 November 1986, emissions or enhancing marine productivity are not MRS, as the objective of 26 ILM 38, art 17 (entered into force 22 August 1990) [Noumea Convention]. these activities is not to increase knowledge of the marine environment.
162 LOSC, supra note 41. 167 See also ibid.
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would be to understand atmospheric conditions the 2014 Whaling in the Antarctic case.179 This case and not potential impacts of SRM on the marine involved a dispute between Australia and Japan environment.168 MCB experiments that aim to assess under the 1946 International Convention for the the creation and albedo effects of seawater particles in Regulation of Whaling,180 rather than the LOSC. low-lying clouds therefore would not qualify as MSR.169 Australia alleged that Japan’s Research Program in the Antarctic (JARPA II) was a guise for commercial The LOSC provides states with a general right to whaling, which is prohibited by a moratorium on conduct MSR,170 but this right depends on where an such operations. The International Court of Justice activity will be conducted. A state may conduct MSR therefore had to determine whether scientific research in their territorial waters171 and exclusive economic was the actual purpose of JARPA II. The court held zone (EEZ),172 in accordance with their own domestic that such a determination “does not turn on the laws. However, if states wish to conduct MSR in the intentions of individual government officials, but territorial waters or EEZ of another coastal state, rather on whether the design and implementation of they must first obtain that state’s permission.173 In a programme are reasonable in relation to achieving accordance with principles of state sovereignty, the stated research objectives....The research objectives coastal states have the exclusive right to decide alone must be sufficient to justify the programme whether to allow other states to conduct MSR in as designed and implemented.”181 The court used the their territorial waters. However, under normal objectives of the JARPA II program as the standard circumstances, coastal states should permit MSR against which it assessed the program’s design activities in their respective EEZs.174 This is in keeping and implementation. In approaching the issue this with the general obligation that states have under the way, the court thereby avoided providing a specific LOSC to promote and facilitate MSR.175 In addition, definition of the meaning of scientific research. all states have the right to conduct MSR in high- seas areas.176 These are areas beyond the national A court or tribunal could take a similar approach jurisdiction of states (i.e., beyond the 200-nautical to determining whether the methods of a marine mile limit of EEZs) and make up nearly 60 percent of geoengineering research program are “appropriate” the world’s oceans.177 States therefore have a general under the LOSC. However, such an approach right to conduct marine geoengineering research would not be comprehensive. The LOSC provides activities across a large part of the world’s oceans. states with little guidance as to what appropriate scientific methods would be in the context of a However, the right of a state to conduct MSR in these specific marine geoengineering research activity, areas is qualified by several important obligations. beyond ensuring that they are reasonable in light MSR must be conducted for peaceful purposes and of the activity’s stated research objectives. In employ “appropriate scientific methods.”178 The practice, states might therefore have quite wide LOSC, again, does not elaborate on what appropriate discretion in how they interpret and apply this scientific methods might be, but a similar issue was obligation to marine geoengineering research. considered by the International Court of Justice in In December 2018, Japan announced that due to the ongoing criticism of its whaling program, it was 168 See Stephens & Rothwell, supra note 165 at 562. withdrawing from the International Convention for 169 See e.g. Marine Cloud Brightening Project, online:
171 Ibid, art 245.
172 Ibid, art 246. 179 Whaling in the Antarctic (Australia v Japan; New Zealand Intervening) [2014] ICJ Rep 226 [Whaling in the Antarctic]. 173 Ibid, arts 245–46. 180 International Convention for the Regulation of Whaling, 2 December 1946, 174 Ibid. 161 UNTS 72 (entered into force 10 November 1948).
175 Ibid, art 239. 181 Whaling in the Antarctic, supra note 179 at 97. The court held that the design and implementation of the JARPA II whaling program was not reasonable 176 Ibid, art 257. in relation to the program’s stated objectives, and that the killing of whales therefore was not for the purpose of scientific research (at 227). 177 Katherine Zischka et al, “Marine Biodiversity Beyond National Jurisdiction— Australia’s Continuing Role” (2018) Australian Committee for the IUCN 1, 182 Justin McCurry & Matthew Weaver, “Japan confirms it will quit IWC to resume online:
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example shows that the international law system MSR activities must also comply with the same rules has had significant difficulty policing the distinction for environmental protection and pollution control between scientific research and other types of activity. as all other activities.188 These rules are set out under This is important to bear in mind in considering Part XII of the LOSC and include a general obligation the prospects of the international law system (based on customary international law) to protect governing research on marine geoengineering. and preserve the marine environment,189 and more specific obligations to prevent, reduce and control Moreover, if a marine geoengineering research activity pollution.190 (These obligations are examined in greater qualifies as MSR, the state responsible for it must also detail below.) However, what is significant for marine satisfy numerous rules that are designed to protect geoengineering research is that the LOSC does not the sovereign rights and interests of other states, and provide separate environmental protection standards also promote cooperation between states regarding or rules for MSR. The environmental protection MSR. States have a general obligation to ensure that obligations in Part XII of the LOSC will apply equally research activities do not unjustifiably interfere with to marine geoengineering research activities and other legitimate uses of the sea.183 More specifically, to full-scale deployment activities. A one-size-fits- states must prevent any installations or equipment all approach to marine environmental protection they use for MSR from interfering with shipping may be desirable from a conservation standpoint; routes, and ensure they are fitted with adequate however, it may not be appropriate for facilitating warning signals to prevent accidents.184 This provision responsible marine geoengineering research. For would be particularly relevant to upwelling and example, the approach in Part XII of the LOSC would downwelling research projects that might involve not allow for the environmental impacts of a marine the installation of large vertical pipes in the ocean. geoengineering research activity to be weighed against the risks of not conducting such research in the face States also have specific reporting requirements if of the impacts of anthropogenic climate change. they intend to conduct MSR within the EEZ or on the continental shelf of another state. They must The rules for MSR under the LOSC largely focus on provide the relevant coastal state with information balancing the rights of coastal states against the need regarding the intended research activity, including to develop better scientific knowledge of the world’s its geographic location, research objectives and oceans and marine environment. This is unsurprising, methods.185 The researching state must also provide given that the first rules for MSR were developed in the coastal state with the opportunity to participate response to concerns by some developing country in the project, and a copy of the research results and coastal states that developed country researching data if requested.186 Moreover, the researching state states might abuse freedoms to conduct MSR to must also ensure that results of any such research are facilitate exploitation of natural resources and made internationally available as soon as possible.187 infringe on their sovereign rights.191 However, this focus on state sovereign rights has resulted in rules These rules could provide a de facto assessment of international law that vary between different areas framework for marine geoengineering research and provide no substantive guidance on how marine activities by providing a coastal state with the geoengineering research should be conducted within opportunity to obtain and consider information a state’s own jurisdiction, or in high-seas areas. relating to a proposed activity. By requiring the state to make results available to the international community, these rules could also promote research transparency and dissemination of results. However, these rules do not apply to activities conducted by a state within its own territorial sea, EEZ, or in high-seas areas.
188 Ibid, art 240(d). 183 LOSC, supra note 41, art 240. 189 Ibid, art 192. 184 Ibid, arts 261–62. 190 Ibid, art 194. 185 Ibid, art 248. 191 See Emmanuella Doussis, “Marine Scientific Research: Taking Stock and 186 Ibid, art 249. Looking Ahead” in Gemma Andreone, ed, The Future of the Law of the Sea: Bridging Gaps between National, Individual and Common Interests 187 Ibid. (Amsterdam: Springer Nature, 2017) 87 at 87–90.
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Marine Geoengineering to Address Climate technologies.196 This is not to say that the Paris Change Agreement expressly requires states to develop Marine geoengineering activities are primarily being and implement CDR technologies. It does mean, proposed to address climate change. Some proposals however, that states have scope to integrate marine aim to address climate change at a global level (i.e., CDR proposals into their respective NDCs.197 This
ocean fertilization by reducing the level of CO2 in the scope is unlikely to extend to marine SRM proposals, atmosphere). Others, such as MCB, might also be as they do not seek to limit GHG emissions.198 used to address the impacts of climate change at a regional or local level.192 It is therefore surprising that The Paris Agreement does not, however, provide geoengineering proposals are currently not explicitly more specific rules for the governance of CDR governed by international climate change law. In 2016, technologies. There are currently no limits on the CIGI published a special report on geoengineering and extent to which states might incorporate CDR into the Paris Agreement by Neil Craik and Wil Burns.193 their NDCs.199 According to Natalya Gallo, David Victor This report found that key provisions of the UNFCCC and Lisa Levin, 27 states have included blue carbon and the Paris Agreement could arguably be interpreted in their NDCs, including “ocean carbon storage and to include CDR proposals. The following draws on protection, replantation or management of mangroves, key findings of that report and considers them in salt marshes, sea grass beds, or other marine the specific context of marine geoengineering. ecosystems.”200 States have otherwise not expressly included CDR in their NDCs.201 However, without clear According to Craik and Burns, parties to the Paris guidelines, there is a risk that states might be too Agreement may include emissions reductions ambitious in relying on CDR technologies that have attendant on deployment of CDR technologies as yet to be adequately researched, developed and/or part of their NDCs on emissions reduction.194 The implemented at scale.202 Craik and Burns also warn that Paris Agreement does not mandate legally binding states could use promises of future CDR deployment emissions reduction targets by individual parties, to justify otherwise “unambitious emission reduction but is rather based on parties making non-binding actions” in their NDCs.203 The UNFCCC contains NDCs to reduce emissions. Article 4 establishes a general principles that could mediate this, such as general goal for all states to reach peak GHG emissions sustainable development204 and precaution,205 but as soon as possible, and to establish a balance does not extend these principles beyond general between global GHG emissions and sinks by 2050. understanding in international law or provide Under article 5, states also have a general obligation further guidance on how they should be interpreted to enhance domestic GHG sinks and reservoirs. to apply in the context of marine geoengineering However, it is up to the parties to determine what technologies. Furthermore, while the Paris Agreement actions they will take to meet these obligations and implicitly suggests that CDR will have an important communicate them to other states through NDCs. role to play in delivering negative emissions, it does not otherwise provide a framework to govern As mentioned above, NDCs are not legally binding; marine geoengineering activities for this purpose. however, states have an “obligation of conduct” to establish domestic measures to try and meet their respective NDCs.195 According to Craik and 196 Craik & Burns, supra note 193 at 6–7.
Burns, the definition of “sinks” and “reservoirs” 197 Ibid at 6. under the UNFCCC is arguably broad enough to 198 Ibid at 8. include the removal and storage of CO2 by CDR 199 Ibid at 6–7.
200 Natalya D Gallo, David G Victor & Lisa A Levin, “Ocean commitments under 192 See case study below regarding MCB proposals to protect the Great Barrier the Paris Agreement” (2017) 7 Nature Climate Change 833 at 833–34. Reef. For a more detailed analysis, see Jan McDonald et al, “Governing geoengineering research for the Great Barrier Reef” (2019) 19:7 Climate 201 Jesse L Reynolds, “International Law” in Michael B Gerrard & Tracy Hester, Policy 801. eds, Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal (Cambridge, UK: 193 A Neil Craik & William CG Burns, “Climate Engineering under the Paris Cambridge University Press, 2018) 57 at 60. Agreement: A Legal and Policy Primer” CIGI, Special Report, 1 November 2016. 202 Craik & Burns, supra note 193 at 7.
194 Ibid at 1. 203 Ibid.
195 Jonathan Pickering et al, “Global Climate Governance Between Hard and Soft 204 UNFCCC, supra note 2, art (3)(4). Law: Can the Paris Agreement’s ‘Crème Brûlée’ Approach Enhance Ecological Reflexivity?” (2018) 31:1 J Envtl L 1 at 14. 205 Ibid, art (3)(3).
22 International Law and Marine Geoengineering
Marine Geoengineering to Enhance Marine waters, EEZs and in high-seas areas. Coastal states Productivity have the exclusive sovereign right to exploit natural Some researchers have also suggested that ocean resources (including fish stocks) within their respective fertilization and marine upwelling approaches territorial seas and EEZs.211 They must also establish might be used to increase the abundance of fish proper conservation and management measures stocks.206 This raises questions about the extent to ensure that living resources within their EEZs to which international fisheries law might apply are not overexploited.212 Article 61(3) of the LOSC to marine geoengineering activities, even in cases states that these “measures shall also be designed where fisheries enhancement is not a specific to maintain or restore populations of harvested objective. This body of international law governs the species at levels which can produce the maximum exploitation of marine living resources. It is made up sustainable yield.”213 There is no definition of the term of numerous treaties and international organizations, “restore” in the LOSC, but it does not seem untenable including the LOSC, the 1995 United Nations Fish to construe it to include marine geoengineering Stocks Agreement (UNFSA)207 and 14 RFMOs.208 activities that might boost fish-stock populations. These agreements establish fishing rights209 and/or However, activities aimed at enhancing marine conservation and management principles to prevent productivity are still subject to other obligations overexploitation of fish stocks.210 Generally speaking, under the LOSC, including obligations on states to these agreements and organizations establish rules protect and preserve the marine environment (see for fishing activities and industries, rather than “International Law on Environmental Harm,” below). rules for activities that aim to stimulate or enhance marine productivity per se. However, this does not Marine geoengineering activities will likely be of mean that marine geoengineering activities are interest to international fisheries governance bodies beyond the scope of international fisheries law. that have adopted an ecosystem-based approach to fisheries management. This is a holistic approach Marine geoengineering for enhancing marine to fisheries management that considers the effect productivity (OIF, for example) may fall within the an activity will have on an ecosystem as a whole, scope of marine living resources that are governed rather than just focusing on the impact it will have under the LOSC. This treaty establishes general on a single species.214 According to E. K. Pikitch et al., rights and obligations concerning the exploitation the purpose of this approach is to “sustain healthy of marine living resources by states in territorial marine ecosystems and the fisheries they support.”215 The ecosystem-based approach has been adopted by 216 217 206 See e.g. Randall S Abate, “Ocean Iron Fertilization and Indigenous Peoples’ the UNFSA and several other RFMOs. While this Right to Food: Leveraging International and Domestic Law Protections to approach is generally directed at the impacts of fishing Enhance Access to Salmon in the Pacific Northwest” (2016) 20 UCLA J Intl L & Foreign Aff 45; Proelss & Hong, supra note 166 at 372. activities on marine ecosystems, it could extend to include the impacts of marine geoengineering activities 207 United Nations Agreement for Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to enhance marine productivity. For example, under to the Conservation and Management of Straddling Fish Stocks and Highly the UNFSA, parties have an obligation to “assess Migratory Fish Stocks, 4 December 1995, 2156 UNTS 3 (entered into force 11 December 2001) [UNFSA]. the impacts of fishing, other human activities and
208 There are 14 separate RFMOs that primarily aim to achieve “long-term conservation and sustainable use of the fish stocks under their management.” 211 LOSC, supra note 41, arts 2, 56. See Rosemary Rayfuse, “Regional Fisheries Management Organizations” in Rothwell et al, supra note 157, 559 at 562. These RFMOs are the International 212 Ibid, art 61(2). Commission for the Conservation of Atlantic Tunas; the Indian Ocean Tuna Commission; the Western and Central Pacific Fisheries Commission; the Inter- 213 UNFSA, supra note 207 [emphasis added] contains a similar obligation to American Tropical Tuna Commission; the Commission for the Conservation “restore” fish populations under article 5(e). of Southern Bluefin Tuna; the North-East Atlantic Fisheries Commission; the Northwest Atlantic Fisheries Organization; the North Atlantic Salmon 214 EK Pikitch et al, “Ecosystem-Based Fishery Management” (2004) 305:5682 Conservation Organization; the South Pacific Regional Fisheries Management Science 346. Organization; the Commission on the Conservation of Antarctic Marine Living Resources; the General Fisheries Commission for the Mediterranean; the South 215 Ibid at 346. Indian Ocean Fisheries Agreement; and the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea. 216 United Nations Agreement for Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating 209 See e.g. LOSC, supra note 41, arts 51, 61–70. to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, 2156 UNTS 3 (entered into force 11 210 See e.g. UNFSA, supra note 207, art 5; Convention on the Conservation and December 2001). Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, 2275 UNTS 43, art 5 (entered into force 217 See Robin Warner, Kristina Gjerde & David Freestone, “Regional governance 19 June 2004); Convention on the Conservation and Management of High for fisheries and biodiversity” in Serge M Garcia, Jake Rice & Anthony Seas Fishery Resources in the South Pacific Ocean, 14 November 2009 [2012] Charles, eds, Governance of Marine Fisheries and Biodiversity Conservation: ATS 28, art 3 (entered into force 24 August 2012). Interaction and Coevolution (Oxford, UK: Wiley-Blackwell, 2014) 211.
23 Governance of Marine Geoengineering
environmental factors on target stocks and species negative impacts on the marine ecosystem (such as belonging to the same ecosystem or associated with the risk of an OIF activity fundamentally altering or dependent upon the target stocks.”218 A further the base of the food web and “nutrient robbing”). example is the 1980 Convention on the Conservation RFMOs that adopt the principle of ecosystem-based of Antarctic Marine Living Resources (CCAMLR), management may still wish to consider proposed which governs marine living resources south of the marine geoengineering activities that fall within their Antarctic convergence. The CCAMLR requires that respective jurisdictions, especially if they are intended any marine harvesting and associated activities align to enhance the numbers of harvestable fish stocks. with conservation principles that maintain ecological RFMOs may also have the capacity to develop future relationships between harvested, dependant and conservation and management measures for marine related populations,219 and also prevent or minimize geoengineering proposals such as ocean fertilization the risk of changes in the marine ecosystem “which and upwelling to enhance marine productivity.221 are not potentially reversible over two or three decades, taking into account…the effects of associated The purposes of marine geoengineering activities activities [to harvesting] on the marine ecosystem are therefore very important in determining which and of the effects of environmental change.”220 existing rules of international law might apply. Marine geoengineering activities aimed at CDR and SRM These ecosystem-based management provisions offer the more straightforward case. However, the of the UNFSA and CCAMLR are broad in scope above analysis shows that such activities may have and may therefore be wide enough to include multiple purposes, which will trigger the application marine geoengineering activities. The provisions of rules of international law from disparate issue under the CCAMLR will likely only apply to marine areas (such as MSR and fisheries management) that geoengineering activities with the express purpose are not usually associated with climate change. of enhancing harvestable stocks (i.e., fish species, krill). The provisions under the UNFSA are, however, likely to apply to any marine geoengineering activity Where Will the Activity Be Conducted that may impact on target stocks, regardless of and by Whom? whether marine productivity enhancement is the primary purpose of the activity. States may therefore have a general obligation under such treaties to Location consider the impacts of marine geoengineering States will have different rights and obligations activities, such as ocean fertilization and ocean regarding marine geoengineering research, field- upwelling, on the ocean ecosystem as a whole, and testing and deployment activities, depending on not just the capacity of these techniques to enhance where it will be conducted. As indicated above, the population of a single harvestable species. under the LOSC, states have different rights and obligations depending on whether the activity As a stand-alone legal principle, ecosystem-based will be conducted within internal waters, management is, however, unlikely to provide territorial waters, an EEZ or the high seas. states with specific obligations relevant to marine geoengineering activities. States may have a general Marine Geoengineering in Coastal Waters obligation to consider the impacts of a proposed activity on the ecosystem as a whole, but this general Coastal states have exclusive sovereignty over obligation does not mandate specific EIA procedures. the waters, airspace, seabed and subsoil of their It also does not provide clear guidance on how the internal waters and territorial sea, which typically potential benefits of marine geoengineering activities extends up to a limit of 12 nautical miles, measured (such as enhancing the numbers of one species, and the lessening of climate change risk, including on marine species) should be weighed against potentially
218 UNFSA, supra note 207, art 5(d) [emphasis added].
219 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, 1329 UNTS 47, art II(3)(b) (entered into force 7 April 1982) [CCAMLR]. 221 The commission has a wide mandate to adopt new conservation measures for activities “associated” with harvesting that may more broadly impact on the 220 Ibid, art II(3)(c). Antarctic marine ecosystem. See e.g. CCAMLR, supra note 219, art IX(2)(i).
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from their coastal baseline.222 States wishing to framework for marine geoengineering activities carried conduct marine geoengineering activities within a out within internal waters, territorial sea or an EEZ. coastal state’s internal waters or territorial sea will therefore need permission from that coastal state. Case Study: MCB Proposals for the Great Barrier Reef Moreover, as these areas are part of the sovereign territory of the coastal state, marine geoengineering In 2017 and 2018, the Australian national activities in internal waters and the territorial sea government and Queensland state government will be subject to the jurisdiction of the coastal allocated approximately AU$2million for state’s domestic environmental and resource feasibility studies of local/regional-scale marine management laws. These may include laws and geoengineering for the Great Barrier Reef (GBR).227 regulations related to marine spatial planning with The GBR is the largest coral reef system in the designated use zoning, environmental protection world and a UNESCO [UN Educational, Scientific and planning, pollution abatement and EIAs.223 and Cultural Organization] World Heritage site. In 2016 and 2017, the reef experienced two severe For example, states that are party to the London bleaching events that resulted in damage across Convention and/or London Protocol should already two-thirds of the reef.228 The frequency and have detailed legislation in place implementing severity of coral bleaching events will continue to their obligations to prevent marine pollution from increase as a result of climate change.229 MCB has ocean dumping under these agreements.224 This been proposed as a potential means of reducing domestic legislation will be particularly relevant sea surface temperatures on the reef and limiting to marine geoengineering activities that require UV exposure to prevent coral bleaching events.230 placement of matter into the ocean (i.e., OIF, alkalinity enhancement, ocean sunshields). Some states Australia does not have domestic laws that also have specific domestic legislation governing explicitly govern geoengineering research, field weather modification and cloud seeding activities testing or deployment. However, Australia’s that may be relevant to MCB proposals.225 primary national environmental legislation, the Environment Protection and Biodiversity Act It is beyond the scope of this report to provide a 1999 (Cth) (EPBC Act), provides for a limited detailed analysis of how domestic law might apply development approval and EIA process that to marine geoengineering across all states. Instead, might act as the starting point for governance the following Australian case study226 illustrates how of MCB on the GBR. The difficulty is that the domestic law might provide a de facto governance EPBC Act applies only in a limited range of circumstances. To trigger operation of the act, the federal environment minister must first 222 LOSC, supra note 41, arts 2, 3. The normal baseline is measured from the low assess whether the MCB proposal would have a waterline along the coast, unless otherwise provided for in the LOSC (art 5). For example, different rules apply for islands or atolls with fringing reefs (art “significant impact” upon a matter of “national 6), states with deeply indented coastlines of a fringe of islands (art 7), river environmental significance.”231 The GBR is listed mouths (art 9), bays (art 10), ports (art 11), roadsteads (art 12), low-tide 232 elevations (art 13), states that have opposite or adjacent coastlines (art 15), under the World Heritage Convention, and is and baselines for archipelagic states (art 47).
223 For an overview of these rules in the context of Canada, the United States and Australia, see Neil Craik, Jason Blackstock & Anna-Maria Hubert, “Regulating 227 “Boosting coral abundance on the Great Barrier Reef”, Small Business Geoengineering Research through Domestic Environmental Protection Innovation Recipients, Advance Queensland (2018). Frameworks: Reflections on the Recent Canadian Ocean Fertilization Case” (2013) 7:2 Carbon & Climate L Rev 117; Albert C Lin, “US Law” in Gerrard & 228 “Two-thirds of the Great Barrier Reef hit by back-to-back mass coral Hester, supra note 201 at 154; Kerryn Brent et al, “Carbon Dioxide Removal bleaching”, ARC Center of Excellence Coral Reef Studies, online:
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specifically identified under the EPBC Act as a marine geoengineering activities are permitted matter of “national environmental significance.”233 and subject to an approval process under the However, the degree of risk posed to the natural domestic laws of the relevant coastal state.241 and social environment of the GBR by MCB proposals may be influenced by the type and Marine Geoengineering in Areas scale of the activity. This will include whether Beyond National Jurisdiction the proposal is directed at research, field testing or implementation. The minister has broad The high seas exist beyond the territorial waters and executive discretion to decide the significance EEZ of individual states, and are therefore open to of the impact.234 It is quite possible that the access by all states.242 On the high seas, all states enjoy minister may decide that small-scale research freedom of navigation, the right to conduct scientific and/or field testing of MCB has (as a standalone research, and the right to construct artificial islands activity) an insignificant risk of impact upon and installations.243 The domestic laws of states do the GBR, such that it will not trigger the wider not generally apply in this area, except to the extent environmental assessment and development that ships are bound by the domestic laws of their flag approval provisions of the EPBC Act. This national state.244 However, marine geoengineering activities environmental legislation might therefore fail on the high seas are subject to duties and obligations to assess the wider ecological and social risks of that all state parties have under the LOSC, including SRM research that the proposal may involve. to protect and preserve the marine environment, obligations relating to scientific research and the Marine Geoengineering in EEZs construction of research installations (Part XIII).
Coastal states have sovereign rights in their respective Other international agreements and regimes also EEZs, which extend up to 200 nautical miles from establish rules relating to activities in the high seas. their baseline.235 These sovereign rights include the As mentioned above, various RFMOs establish right to explore, exploit, conserve and manage natural rules relating to certain high-seas areas for the resources in the water column, seabed and sub-soil.236 management of fisheries. Regional seas agreements According to Jesse Reynolds, marine CDR activities also provide states with additional substantive and
that utilize the capacity of the ocean to store CO2 may procedural obligations for the protection of the marine be considered exploitation of a “natural resource.”237 environment of the high seas. Key examples include If so, coastal states would have the exclusive right the OSPAR Convention for the North-East Atlantic to engage in (or license others to engage in) marine and Arctic region,245 the Noumea Convention for the CDR activities within their respective EEZs.238 South Pacific,246 the Barcelona Convention for the Mediterranean Sea247 and the Lima Convention for the Coastal states also have jurisdiction to enact laws South-East Pacific.248 These regional seas agreements to protect and preserve the marine environment in contain rules potentially applicable to marine their EEZ, and other states are required to comply geoengineering activities, including broad rules for with any such domestic laws.239 Coastal states environmental protection, prevention of pollution also have jurisdiction to enact laws relating to from airborne sources, application of the precautionary installations, structures and MSR.240 States wishing to conduct marine geoengineering activities in an EEZ must therefore determine whether 241 For example, under Australian domestic law, the dumping of material in Australia’s EEZ is subject to a permit process, and ocean fertilization activities are unlikely to be approved. Environmental Protection (Sea Dumping) Act 1981 (Cth) 4, 10A. For further discussion, see Brent et al, supra note 223.
233 EPBC Act, supra note 231, ss 12, 24B. 242 LOSC, supra note 41, art 87.
234 McDonald et al, supra note 192 at 6. 243 Ibid.
235 LOSC, supra note 41, art 57. 244 For further explanation, see Reynolds, supra note 201 at 80.
236 Ibid, art 56(1)(a). 245 OSPAR Convention, supra note 161.
237 Reynolds, supra note 201 at 76. 246 Noumea Convention, supra note 161.
238 Ibid at 81. 247 Barcelona Convention, supra note 161.
239 LOSC, supra note 41, art 56(b)(iii), 58(3). 248 Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific, 12 November 1981 (entered into force 19 May 1986) 240 Ibid, art 56(b)(i), 56(b)(ii). [Lima Convention].
26 International Law and Marine Geoengineering
principle, control of pollution from marine dumping, initial environmental assessment255 or a comprehensive EIA and the prevention of transboundary harm. State EIA.256 The Committee for Environmental Protection parties to regional seas agreements will therefore established under the Madrid Protocol257 receives have additional obligations under international and considers environmental assessments submitted law, if they wish to conduct marine geoengineering by a state, and then makes recommendations. activities within the relevant high-seas areas. However, it is the Antarctic Treaty Consultative Parties Meeting, held yearly under the 1959 Antarctic As stated above, due to its low iron content, the Treaty, that ultimately decides on whether an activity Southern Ocean has been the site of many of the OIF may proceed and, if so, under what conditions.258 experiments carried out over the last two decades (see “OIF,” above). Interestingly, OIF and other marine As discussed above, the CCAMLR is the treaty geoengineering activities in the Southern Ocean may within the Antarctic Treaty system that governs trigger rules under the Antarctic Treaty System.249 marine living resources in the Southern Ocean. The The 1991 Protocol on Environmental Protection to CCAMLR utilizes an ecosystem-based management the Antarctic Treaty (Madrid Protocol) establishes approach to decision making that may be relevant a framework for environmental protection of the to future OIF activities in the Southern Ocean. In Antarctic continent and the Southern Ocean below terms of location, the jurisdiction of the CCAMLR 60o south latitude.250 The Madrid Protocol is aimed extends north (beyond the jurisdiction of the Madrid at comprehensive protection of the Antarctic Protocol) to the Antarctic convergence,259 which sits environment and its ecosystems and so designates it roughly at latitude 55° south.260 Thus, the CCAMLR as a “natural reserve, devoted to peace and science.”251 may have extended geographical relevance to future The protocol contains fundamental principles for OIF activities in the Southern Ocean, in particular environmental protection, including an obligation to for large-scale field testing or deployment. limit activities from having adverse impacts on “the Antarctic environment and dependent and associated ecosystems.”252 More specifically, parties to the Madrid Membership in Key International Agreements Protocol must prevent their activities from negatively In addition to where a marine geoengineering affecting Antarctic climate and weather patterns, activity will be conducted, it is also important to air and water quality, fauna and flora populations, consider who is planning to conduct it. Rules of and threatened species.253 States within the Madrid customary international law are generally binding Protocol also have an obligation to avoid “significant on all states. However, this is not the case for changes in the atmospheric, terrestrial (including international agreements. Under the doctrine of aquatic), glacial or marine environment.”254 Marine state sovereignty, states must consent to be bound geoengineering activities may be incompatible with by international agreements by ratifying, accepting these principles, especially if they will significantly or otherwise expressing consent.261 The overall alter the Antarctic marine environment. capacity of an international agreement to govern marine geoengineering activities therefore depends The Madrid Protocol also establishes detailed on which states have consented to be bound by it. procedures for EIA. The general obligation to conduct an EIA is set out in article 8, with more detailed rules Rules of international law generally do not directly set out in Annex 1. All activities having more than a create obligations for non-state actors such as “minor or transitory impact” must undergo at least an individuals or corporations. However, to uphold their
255 Ibid at Annex 1, art 2.
249 The primary treaty in this system is the Antarctic Treaty, 1 December 1959, 256 Ibid at Annex 1, art 3. 402 UNTS 72 (entered into force 23 June 1961). 257 Ibid, art 11. 250 Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, [1998] ATS 6, art 3 (entered into force 14 January 1998) [Madrid Protocol]. 258 Madrid Protocol, supra note 250 at Annex 1, arts 3(5), 4.
251 Ibid, art 2. 259 CCAMLR, supra note 219, art 1(1).
252 Ibid, art 3(2)(a). 260 Antarctic Convergence, Australian Antarctic Division, online:
27 Governance of Marine Geoengineering
obligations under international law, states may be required to enact relevant domestic legislation that applies to individuals and corporations under their jurisdiction and control. For example, states must enact and enforce domestic laws to uphold their obligation to prevent transboundary harm under customary international law (see “The ‘No-Harm Rule’,” below). States parties to the LOSC also have an obligation to adopt and enforce domestic laws to protect and preserve the marine environment.262 Thus, international law may still be relevant to marine geoengineering activities conducted by individual researchers and corporations.
The following figures illustrate the extent to which states are party to the key international agreements that are most relevant to marine geoengineering. Figure 1 shows membership of the global framework- style agreements: the LOSC, UNFSA, CBD, UNFCCC and the Paris Agreement. Figure 2 shows the following sectoral agreements: the London Convention,263 London Protocol,264 Madrid Protocol, CCAMLR, OSPAR, Noumea Convention, Barcelona Convention, Lima Convention, Espoo Convention265 and ENMOD Convention.266 Both tables show how many states in total have ratified or assented to the agreements and which key states have ratified or assented.267 The denomination as “key states” refers to those where geoengineering research is being or has been conducted or proposed, as well as other states that have significant scientific and technical capacity to engage in geoengineering activities in the future.
262 Examples include LOSC, supra note 41, art 210 (prevention of pollution from marine dumping); art 211 (prevention of marine pollution from vessels); art 212 (pollution from or through the atmosphere). The LOSC also provides states with corresponding duties to enforce domestic laws in arts 213–22.
263 London Convention, supra note 155.
264 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 7 November 1996, [2006] ATS 11 (entered into force 24 March 2006) [London Protocol].
265 Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 1989 UNTS 309 (entered into force 10 September 1997) [Espoo Convention].
266 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 10 December 1976, 1108 UNTS 151 (entered into force 5 October 1978) [ENMOD Convention].
267 As of October 21, 2019.
28 International Law and Marine Geoengineering
Figure 1: Global Agreements
LOSC UNFSA CBD UNFCCC Paris Agreement
Total parties 168 90 196 197 181
Australia ü ü ü ü ü
Canada ü ü ü ü ü
Chile ü ü ü ü ü
China ü û ü ü ü
France ü ü ü ü ü
Germany ü ü ü ü ü
India ü ü ü ü ü
Indonesia ü ü ü ü ü
Japan ü ü ü ü ü
Malaysia ü û ü ü ü
New Zealand ü ü ü ü ü
Philippines ü ü ü ü ü
Russian Federation ü ü ü ü û
South Africa ü ü ü ü ü
South Korea ü ü ü ü ü
Switzerland ü û ü ü ü
United Kingdom ü ü ü ü ü
United States û ü û ü ü*
Source: Authors.
*The Trump administration announced in 2016 that the United States would withdraw from the Paris Agreement. Under article 28 of the Paris Agreement, the earliest the United States could give official notification of its intention to withdraw was November 4, 2019; and the soonest the withdrawal notice can take effect is one year after the notification has been received by the Depositary.
29 Governance of Marine Geoengineering
Figure 2: Sectoral Agreements London Convention London Protocol Madrid Protocol CCAMLR OSPAR Convention Noumea Convention Barcelona Convention Lima Convention Espoo Convention ENMOD Convention
Total parties 87 53 40 30 16 12 22 5 45 78
Australia ü ü ü ü û ü û û û ü
Canada ü ü ü ü û û û û ü ü
Chile ü ü ü ü û û û û û ü
China ü ü ü ü û û û û û ü
France ü ü ü ü ü ü ü û ü û
Germany ü ü ü ü ü û û û ü ü
India û û ü ü û û û û û ü
Indonesia û û û û û û û û û û
Japan ü ü ü û û û û û û ü
Malaysia û û ü û û û û û û û
New Zealand ü ü ü ü û ü û û û ü
Philippines ü ü û û û û û û û û
Russian Federation ü û ü ü û û û û û ü
South Africa ü ü ü û û û û û û û
South Korea ü ü ü ü û û û û û ü
Switzerland ü ü ü û ü û û û ü ü
United Kingdom ü ü ü ü ü û û û ü ü
United States ü û ü ü û ü û û û ü
Source: Authors.
Global framework-type agreements that establish and most are also parties to the Paris Agreement. rules relevant to marine geoengineering activities These agreements establish rights and obligations legally bind more states than sectoral agreements. For potentially relevant to marine geoengineering, but, example, all the key states for marine geoengineering, being part of framework agreements, these rights and except the United States, are parties to both the obligations tend to be broad and general in nature. LOSC and the CBD. All key states for marine Thus, the global framework agreements relevant to geoengineering are also parties to the UNFCCC marine geoengineering activities have very good
30 International Law and Marine Geoengineering
breadth of participation, but arguably suffer from and severity of environmental risks and impacts a lack of depth or specificity of obligations. they present. There are numerous rules contained in international agreements and in customary In contrast, by their very nature, the sectoral international law that may be triggered by activities agreements relevant to marine geoengineering will that pose risks of environmental harm. Some rules have fewer state parties. However, these agreements are only invoked by risks that are transboundary typically provide state parties with more specific in nature: that is, likely to harm the territory of and detailed obligations. A notable example is the another state or an area beyond the jurisdiction of Espoo Convention, which establishes detailed rules the states, such as the high seas. Other rules exist for transboundary EIAs. The rules of the Espoo under international law that may be triggered Convention are relevant to marine geoengineering regardless of whether the activity presents risks that activities likely to have transboundary impacts on are transboundary in nature. These include rules to the territory of other states. However, apart from protect and preserve the marine environment, rules Canada, only European states have ratified or assented for the protection of biodiversity and rules to control to the Espoo Convention. This significantly restricts specific sources of marine environmental pollution. the Espoo Convention’s capacity to govern marine geoengineering activities. Regional seas agreements As illustrated in the first section of this report, marine similarly bind only a small number of key states. Thus, geoengineering activities may present numerous while sectoral agreements contain rules potentially risks of environmental harm. These risks will vary relevant to marine geoengineering activities, their depending on the specific proposal (i.e., OIF, AOA, blue capacity to contribute to international governance carbon enhancement, upwelling/downwelling, MCB is constrained by the relatively small number of and microbubbles) as well as the scale at which it is states that have consented to be bound by them. The to be conducted. Large-scale field testing and full- greater depth of obligation in sectoral agreements scale deployment will likely present different types relevant to marine geoengineering activities is of risks and/or a greater severity of risk than small- offset by their reduced breadth of participation. scale research activities. A key issue in identifying and analyzing relevant rules of international law is This section demonstrates that scientists and policy whether a marine geoengineering activity presents makers cannot take a one-size-fits-all approach when risks of transboundary harm. Large-scale activities considering how existing rules of international law and activities conducted in the high seas are more might apply to marine geoengineering. It is important likely to present such risks, and therefore trigger for scientists and policy makers to pay attention to rules relating to transboundary harm. By contrast, the location of a proposed marine geoengineering small-scale activities conducted within a state’s activity and identify the state responsible for it. territorial waters or EEZ might pose negligible (if This is because the relevant rules of international any) risk of transboundary harm. It is therefore law vary significantly depending on these two important to separately consider both categories of parameters. These differences may be exacerbated rules. This section begins by examining rules that further, depending on the likely impacts of a marine can only be triggered by marine geoengineering geoengineering activity, which are considered below. activities that present risks of transboundary impacts. It then considers rules that may be triggered regardless of whether a marine geoengineering What Are the Likely Environmental activity risks having transboundary impacts. Impacts of the Marine Geoengineering Activity? International Law on Transboundary Environmental Impacts The above two sections have considered how marine The ENMOD Convention geoengineering activities might give rise to different obligations under international law depending on The ENMOD Convention268 contains rules the purpose of the activity, where the activity is potentially applicable to transboundary harm from going to be conducted and which state is responsible geoengineering activities. ENMOD is essentially a for it. In addition to these considerations, further rules of international law may be relevant to marine geoengineering activities depending on the nature 268 ENMOD Convention, supra note 266.
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Cold War-era arms control agreement negotiated in peaceful purposes, such as seeking to ameliorate response to attempts by great powers to weaponize the effects of climate change or marine productivity environmental modification techniques such as enhancement.276 ENMOD will therefore not likely cloud seeding and large-scale use of defoliants.269 govern states’ marine geoengineering activities, so long as they are conducted for peaceful purposes. This The phrase “environmental modification techniques” means that ENMOD will only have the capacity to is broadly defined in ENMOD as “any technique for govern risks of transboundary harm to other states in changing — through the deliberate manipulation of very limited circumstances. It is therefore important natural processes — the dynamics, composition or to consider whether rules of customary international structure of the Earth, including its biota, lithosphere, law can respond more widely to risks of transboundary hydrosphere and atmosphere, or of outer space.”270 harm from marine geoengineering activities.
Marine geoengineering proposals such as MCB, The ‘No-Harm Rule’ microbubbles, OIF, AOA, artificial upwelling/ downwelling and blue carbon activities Marine geoengineering activities may trigger could therefore fall within the scope of this longstanding rules of customary international law definition, and potentially be governed by the if they have the potential to cause harm to the rules within the ENMOD Convention.271 territory of other states, or to global common areas. Prominent examples include the potential for OIF A central feature of ENMOD is a partial prohibition to rob nutrients and decrease primary production on environmental modification techniques. The in downstream regions, and the risk that large- prohibition is partial in that it only applies to scale MCB might decrease precipitation in different techniques that have “widespread, long-lasting or regions of the globe (see “MCB,” above). These rules severe effects” on other states.272 The prohibition is are also relevant to marine geoengineering activities also partial in that the environmental modification conducted in high-seas areas, as they are likely to technique must be carried out for a “military or have impacts beyond the sovereign territory of an other hostile purpose.”273 That is, the prohibited individual state. Under customary international law, environmental modification techniques are those all states have an obligation to prevent activities under intended to cause destruction, damage or injury to their jurisdiction and control from causing significant another state.274 Peaceful environmental modification harm to the territory of other states and areas beyond is not prohibited. In fact, the ENMOD Convention the individual jurisdiction and control of states, recognizes that environmental modification techniques such as the high seas.277 This rule is often referred for peaceful purposes could play an important to as the “no-harm” rule. It has been incorporated role in protecting the global environment.275 into binding international agreements, including the CBD278 and the UNFCCC,279 and is a fundamental In the context of marine geoengineering, the partial principle of international environmental law.280 prohibition on environmental modification under ENMOD will not apply to activities conducted for This rule can only be triggered by marine geoengineering activities that present a risk of
269 See James Rodger Fleming, “The pathological history of weather and climate modification: Three cycles of promise and hype” (2006) 37:1 Historical Studies in Physical & Biological Sciences 3.
270 ENMOD Convention, supra note 266, art II. 276 See Brent, McGee & McDonald, supra note 275. 271 See Reynolds, supra note 201 at 102. 277 Threat or Use of Nuclear Weapons, supra note 156 at 29. The no-harm rule 272 ENMOD Convention, supra note 266, art I(1). was first recognized in Trail Smelter (United States v Canada) (Awards) (1938 and 1941) 3 Reports of International Arbitral Awards 1905. These 273 Ibid. rules have also been reformulated in non-binding multilateral declarations: Declaration of the United Nations Conference on the Human Environment, UN 274 Ibid. Doc A/CONF/48/14/REV.1 (16 June 1972) Principle 21; Declaration of the United Nations Conference on Environment and Development, UN Doc A/ 275 ENMOD Convention, supra note 266 (“Realizing that the use of CONF.151/26/Rev. 1(3–14 June 1992) Principle 2. environmental modification techniques for peaceful purposes could improve the interrelationship of man and nature and contribute to the preservation 278 CBD, supra note 154, art 3. and improvement of the environment for the benefit of present and future generations” at Preamble). See also Kerryn Brent, Jeffrey McGee & Jan 279 UNFCCC, supra note 2 at Preamble. McDonald, “The governance of geoengineering: an emerging challenge for international and domestic legal systems?” (2015) 24:1 J L, Information & 280 See Philippe Sands & Jacqueline Peel, Principles of International Environmental Science 1 at 9; Reynolds, supra note 201 at 102. Law, 3rd ed (Cambridge, UK: Cambridge University Press, 2012) at 191.
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“significant” transboundary harm.281 There is no set impacts from marine geoengineering activities, states legal definition of this threshold, but it is commonly will still have an obligation to prevent significant understood to mean that the harm must be more transboundary harm, so long as there are “plausible than “detectable,” but need not reach the level of indications of potential risks.”288 How this is to be “serious” or “substantial.”282 Potentially relevant translated in practice in unclear, but at least in factors for assessing severity of harm for marine theory it means that the no-harm rule may have geoengineering activities may include the vulnerability some capacity to govern marine geoengineering of the environment likely to be affected, the physical activities, despite scientific uncertainty as to and/or temporal scale over which impacts are likely the precise nature or scope of their impacts. to be felt, and the irreversibility of the impacts.283 The no-harm rule is therefore more likely to apply The no-harm rule also provides states with procedural to large-scale field tests and full-scale deployment obligations that complement the substantive obligation activities than to small-scale research activities. of prevention. States have a preliminary obligation to ascertain whether a marine geoengineering If a marine geoengineering activity poses a risk activity poses a risk of significant transboundary of significant transboundary harm, the state(s) harm or harm to the global commons.289 States can responsible for the activity will have to satisfy several satisfy this obligation by conducting a preliminary different obligations. First and foremost, states have risk assessment of proposed marine geoengineering a substantive obligation of “due diligence” to use activities.290 Customary international law does not, all means at their disposal to prevent significant however, prescribe what the parameters of such an transboundary harm and harm to the global assessment should be, so states have wide latitude commons.284 Exactly what this obligation should in how they interpret this obligation.291 Furthermore, entail will depend on the marine geoengineering this obligation only applies to detectable risks, and activity being proposed, but at a basic level states is unlikely to address unforeseeable risks that might must enact and vigilantly enforce domestic laws to arise from marine geoengineering activities. uphold this obligation.285 They must also ensure that they are capable of enforcing these rules against public If the preliminary risk assessment indicates that and private actors.286 The Seabed Disputes Chamber a marine geoengineering activity may present a of the International Tribunal for the Law of the Sea risk of significant transboundary harm, the state has suggested that “the precautionary approach is responsible for the activity must then conduct a also an integral part of the general obligation of due transboundary EIA.292 The content of the EIA must diligence.”287 It would therefore be prudent for states reflect the nature and magnitude of the specific marine responsible for marine geoengineering activities geoengineering proposal, and take into account to adopt a precautionary approach. This means potentially adverse environmental impacts.293 It must that if there is insufficient scientific evidence as to also be conducted prior to the commencement of the specific scope or nature of potential negative a marine geoengineering activity.294 In the case of marine geoengineering research, it may be prudent for states, as part of the EIA process, to consider whether
281 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 at alternative, less risky options may achieve the same 101 [Pulp Mills].
282 International Law Commission, “Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries” (2001) II:2 YB International Law Commission at 152.
283 Kerryn Brent, “The Certain Activities case: what implications for the no-harm 288 Ibid at 135. rule?” (2017) 20:1 Asia Pac J Envt L 28 at 53; David Reichwein et al, “State Responsibility for Environmental Harm from Climate Engineering” (2015) 5 289 Brent, supra note 283 at 53. Climate L 142. 290 Activities in the Area, supra note 285 at 154. 284 Pulp Mills, supra note 281 at 101. 291 Brent, supra note 283 at 53–54. 285 Ibid at 197; Activities in the Area (Advisory Opinion), (2011) Case No 17 at 115 (International Tribunal for the Law of the Sea) [Activities in the Area]. 292 Activities in the Area, supra note 285 at 104. See also Pulp Mills, supra note 281, which indicates that the duty to conduct an EIA is not just a fundamental 286 Ibid. See also The South China Sea Arbitration (Philippines v China) part of the no-harm rule, but a separate obligation under customary (Awards), (2016) Case No 2013-19 at 964–66, 973–75 (Permanent Court international law (at 204). of Arbitration). This decision was in the context of the general obligation to protect and preserve the marine environment of the high seas under the LOSC, 293 Pulp Mills, supra note 281 at 205; Activities in the Area, supra note 285 at article 192, which codifies the no-harm rule. 104.
287 Activities in the Area, supra note 285 at 128, 131. 294 Pulp Mills, supra note 281 at 205.
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results, but this is not necessarily a legal requirement.295 activities are unlikely to meet this threshold. Other The Espoo Convention establishes more comprehensive rules of international law may, however, be relevant guidelines for transboundary EIAs, including to small-scale activities and activities unlikely obligations to involve the general public of the affected to have significant transboundary impacts state in the process.296 However, as noted above, the Espoo Convention binds only a small number of states. International Law on Environmental Harm Under customary international law, states have There are numerous rules in international agreements wide discretion to determine what the content of a that build on obligations under customary transboundary EIA should be for a specific marine international law that do not necessarily require geoengineering activity.297 If the EIA affirms the risk of harm to cross territorial boundaries. These rules are significant transboundary harm, the state responsible instead triggered by risks of environmental harm for the marine geoengineering activity then has an per se and are therefore more likely to play a role obligation to notify and consult with potentially in governing marine geoengineering activities in affected states.298 Customary international law does not the near term. The most prominent are obligations specify which states and/or international organizations to protect and preserve the marine environment a proponent state should notify and consult with if a under the LOSC; obligations directed at conserving marine geoengineering activity poses a risk of harm to biological diversity under the CBD; and obligations an area beyond national jurisdiction of states, such as to protect the marine environment from pollution the marine environment of the high seas. Depending as a result of marine dumping activities under on the nature of the risk, international agreements the London Convention and Protocol. As noted may provide further guidance on who to notify with above, other international agreements also contain regard to risks of harm beyond national jurisdiction. environmental protection provisions potentially For example, the LOSC and the CBD provide further relevant to marine geoengineering activities. These guidance on who to notify regarding risks of include the Madrid Protocol to the Antarctic Treaty, harm to the marine environment and biodiversity, RFMOs and regional seas agreements. However, respectively.299 However, these provisions only relate due to the limited number of parties and the to “imminent” risks of harm and may therefore be of geographical scope of these agreements, they are limited use for harm stemming from planned activities. not examined further in this section. The following sections analyze rules under the LOSC, CBD and The no-harm rule provides states with several the London Protocol and Convention that may be obligations for marine geoengineering activities that invoked by marine geoengineering activities that are likely to have transboundary impacts. The main pose risks of harm to the marine environment. advantage of this rule is that it is legally binding and enforceable against all states. However, states have Marine Environmental Protection Rules under the LOSC a considerable amount of discretion in how they decide to interpret their obligations under this rule Marine geoengineering activities that risk harming in the context of marine geoengineering activities. A the marine environment may give rise to obligations further limitation is that the no-harm rule can only under Part XII of the LOSC, which establishes rules be triggered by risks of harm above the threshold for the protection and preservation of the marine level of “significant.” It is therefore unlikely to environment. Under article 192, states have a general substantially contribute to marine geoengineering obligation to protect and preserve the marine governance in the near term, as small-scale research environment, and other articles in this part expand on this obligation. Part XII of the LOSC essentially codifies existing obligations under customary 295 See Anna-Maria Hubert & David Reichwein, “An Exploration of a Code of Conduct for Responsible Scientific Research involving Geoengineering: international law, with the key difference that it Introduction, Draft Articles and Commentaries” (2015) IASS, Potsdam Institute applies to marine geoengineering activities that for Science, Innovation and Society, University of Oxford, draft art 14; Neil Craik, “International Law and Geoengineering: Do Emerging Technologies are conducted in, or impact on, the territory of the Require Special Rules?” (2015) 5:2–4 Climate L 111 at 132–33. state responsible for them, as well as activities that
296 Espoo Convention, supra note 265, art 2. may have transboundary consequences or that are conducted in high-seas areas.300 Unlike the no-harm 297 Pulp Mills, supra note 281 at 205.
298 Activities in the Area, supra note 285 at 104–68. 300 Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law and the 299 LOSC, supra note 41, art 198; CBD, supra note 154, art 14(1)(d). Environment, 3rd ed (Oxford, UK: Oxford University Press, 2009) at 387.
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rule, article 192 also does not prescribe a threshold ocean that will likely have a deleterious effect.307 level of harm, and is therefore of greater relevance OIF and AOA will likely satisfy this requirement, to small-scale research and field-testing activities. as they will directly introduce substances into the water column. However, it is less clear whether Articles 194, 195 and 196 of the LOSC provide more other marine geoengineering proposals will meet detailed provisions for the prevention of marine this requirement. MCB may indirectly result in the pollution, including the obligation to take all measures deposition of salt particles on the surface of the necessary to “prevent, reduce and control pollution ocean,308 but this deposition alone may not present a of the marine environment from any source.”301 This risk of “deleterious effects,” especially given that the obligation includes taking measures to minimize salt particles would originate from the same water the release of toxic, harmful and noxious substances column. MCB may therefore fall outside the scope into the ocean.302 States also have obligations to of this definition.309 As noted above in the section prevent, reduce and control pollution of the marine entitled “Microbubbles/Foam,” some microbubble environment from the use of technology.303 The SRM techniques may involve placing materials, such capacity of these provisions to contribute to marine as glass microspheres, on the surface of the ocean, geoengineering governance hinges on the definition but other techniques may use vortex nozzles or other of marine pollution, that is, “the introduction means to create bubbles or foam without introducing by man, directly or indirectly, of substances or matter. Ocean upwelling would involve the transfer energy into the marine environment, including of water and nutrients within the ocean. The ocean estuaries, which results or is likely to result in such pipes are more likely to be considered “equipment” or deleterious effects as harm to living resources and “installations” rather than a “substance,” and during marine life, hazards to human health, hindrance scientific research phases would be governed by to marine activities, including fishing and other specific rules under articles 258–262 of the LOSC.310 legitimate uses of the sea, impairment of quality for It is therefore uncertain whether obligations under use of sea water and reduction of amenities.”304 articles 194, 195 and 196 (pertinent to marine pollution) will apply to all marine geoengineering proposals.311 This definition is broad and has the potential to apply to a wide range of impacts on the marine The LOSC does, however, establish procedural environment from marine geoengineering activities, obligations that will apply to all marine geoengineering including impacts on marine ecology.305 According to activities, in order to protect and preserve the marine Alan Boyle, the definition includes the ocean’s uptake environment. All states have a duty to cooperate of atmospheric CO2 emissions and consequential with other states to protect and preserve the marine ocean acidification.306 It could therefore be argued environment,312 and to notify other states and that marine CDR proposals qualify as a source of international organizations if there is an imminent marine pollution, regardless of any other impacts danger of harm to the marine environment.313 States they might have on the marine environment. must also conduct an EIA for activities that may cause “substantial pollution” or “significant and It is important to keep in mind that the definition harmful changes to the marine environment,”314 of “marine pollution” under the LOSC is restricted and states have ongoing monitoring obligations.315 to activities that introduce substances into the
307 Karen N Scott, “Mind the Gap: Marine Geoengineering and the Law of the Sea” in Robert C Beckman et al, eds, High Seas Governance: Gaps and Challenges (Leiden: Brill Neijhoff, 2019) 33 at 45 [Scott, “Mind the Gap”]. 301 LOSC, supra note 41, art 194(1) [emphasis added]. 308 Boyd & Vivian, supra note 44 at 23. 302 Ibid, art 194(3). 309 See also Scott, “Mind the Gap”, supra note 307 at 45. Scott similarly queries 303 Ibid, art 196. whether blue carbon enhancement, such as macroalgal afforestation, could be classified as “pollution.” 304 Ibid, art 1(4). 310 See Proelss & Hong, supra note 166 at 373–75. 305 For further discussion, see Reynolds, supra note 201 at 76; Karen N Scott, “International Law in the Anthropocene: Responding to the Geoengineering 311 Scott, “Mind the Gap”, supra note 307 at 45. Challenge” (2013) 34 Michigan J Intl L 309 at 335–36 [Scott, “International Law in the Anthropocene”]; Harald Ginzky, “Marine Geo-Engineering” in 312 LOSC, supra note 41, art 197. Markus Salomon & Till Markus, eds, Handbook on Marine Environment Protection: Science, Impacts and Sustainable Management (Amsterdam: 313 Ibid, art 198. Springer, 2018) 997 at 1000. 314 Ibid, art 206. 306 Alan Boyle, “Law of the Sea Perspectives on Climate Change” (2012) 27 Intl J Marine & Coastal L 831 at 832–33. 315 Ibid, art 204.
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However, as with the duty to conduct an EIA under on the conservation and sustainable use of biological customary international law, this obligation is very diversity.”321 States have a general duty to cooperate general, and the LOSC does not prescribe what the with one another and relevant international scope or content of an EIA should be for marine organizations to conserve biological diversity.322 geoengineering activities. In particular, the LOSC The CBD also establishes rules regarding EIAs.323 does not provide any mechanisms to assess the risk States must notify other states if an activity in their of harm that might result from not developing marine jurisdiction and control poses a risk of imminent or geoengineering activities to reduce the impacts of grave danger to biodiversity in the territory of another climate change on the marine environment.316 state or in areas beyond national jurisdiction.324
The CBD Aside from this obligation, the rules regarding impact assessment merely require states to establish The CBD provides states with obligations to conserve appropriate EIA procedures in their own domestic biological diversity, enable sustainable use of its laws. However, the CBD does not stipulate what components, and the fair and equitable sharing of the content or parameters of an EIA should be, genetic resources.317 The CBD’s definition of “biological and provides little guidance on what would be diversity” includes terrestrial, marine and other appropriate for marine geoengineering activities.325 aquatic ecosystems.318 Marine geoengineering activities Therefore, obligations established under the CBD are likely to impact on marine biodiversity and marine expressed in very general terms, and their capacity ecosystems will therefore fall within the scope of this to contribute to marine geoengineering governance agreement. All the marine geoengineering proposals is limited by frequent use of qualifying language.326 examined in this report have the potential to impact on marine biodiversity. For example, OIF could alter The CBD has attempted to establish additional rules the base of the marine food web; OIF and ocean pertinent to geoengineering activities. In 2008, the upwelling could exacerbate ocean acidification and CBD Conference of the Parties (COP) adopted a non- thereby impact on marine ecosystems; AOA could binding decision (decision IX/16) requesting states alter primary and secondary production if non- to “ensure that ocean fertilization activities do not carbon alkaline materials are added to the ocean (see take place until there is adequate scientific basis on “OIF,” above). Even MCB, which is to be conducted which to justify such activities.”327 The exceptions to in the atmosphere above the ocean’s surface, could this request are “small-scale scientific research studies impact marine ecology and food webs by altering the in coastal waters.”328 In 2010, the parties to the CBD ocean’s carbon uptake. Rules under the CBD do not adopted another non-binding COP decision (decision differentiate between marine geoengineering research X/33), this time for geoengineering activities more activities, field testing or full-scale deployment. They generally. This decision “invites” states to ensure that also apply to marine geoengineering activities carried “no climate-related geo-engineering activities that may out within the territorial jurisdiction of a state, or affect biodiversity take place, until there is an adequate in areas beyond state jurisdiction, such as the high scientific basis on which to justify such activities seas.319 The CBD is therefore likely to be broadly and appropriate consideration of the associated risks applicable to most marine geoengineering activities. for the environment and biodiversity and associated social, economic and cultural impacts, with the Although broadly applicable, the CBD creates few specific obligations relevant to marine geoengineering 321 Ibid, art 7(c). activities. The CBD reiterates the duty to prevent transboundary harm under customary international 322 Ibid, art 5. law. 320 It obliges states to identify activities “which 323 Ibid, art 14.
have or are likely to have significant adverse impacts 324 Ibid, art 14(d).
325 See also Ginzky, supra note 305 at 1007.
316 See also Scott, “Mind the Gap”, supra note 307 at 44. 326 Reynolds, supra note 201 at 96.
317 CBD, supra note 154, art 1. 327 Decisions adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth Meeting, UNEP Dec IX/16, s C (“Biodiversity 318 Ibid, art 2. and climate change”), UN Doc UNEP/CBD/COP/9/29 (2008) [CBD, “Biodiversity and Climate Change”], online:
320 CBD, supra note 154, art 3. 328 CBD, “Biodiversity and Climate Change”, supra note 327.
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exception of small scale scientific research studies general obligations to prevent, reduce and control that would be conducted in a controlled setting.”329 pollution from dumping activities under the LOSC.338 The London Convention and Protocol complement Decision X/33 was reaffirmed by the CBD COP in the LOSC by providing more detailed and specific 2012330 and again in 2016.331 The 2016 decision noted obligations in this regard. The London Convention the need for more research to better understand was negotiated in 1972 and aims to control sources the impacts of geoengineering on “biodiversity of marine environmental pollution, especially from and ecosystem functions and services,”332 but this the dumping of waste and other matter at sea.339 should not be interpreted as negating decision X/33, The London Protocol was negotiated in 1996 with which essentially encouraged states not to engage in the intention that it would succeed and replace geoengineering activities, marine-based or otherwise, the London Convention.340 Its objectives are more that might significantly affect biodiversity. Whether a ambitious than the Convention’s, being to protect and marine geoengineering activity should be prohibited preserve the marine environment from all sources under this decision is therefore going to be a question of pollution, and eliminate pollution from dumping of scale. Activities would need to be conducted activities.341 Unlike the Convention, the London at a large enough scale to affect biodiversity.333 Protocol explicitly adopts a precautionary approach.342 Both agreements apply to activities conducted within These COP decisions are non-binding, which a state’s territorial sea, EEZ and on the high seas.343 The means that state parties to the CBD are not legally London Convention and Protocol are therefore both required to comply with them. They are nevertheless potentially relevant to marine geoengineering research, persuasive.334 As noted above in Figure 2, the CBD field testing and deployment activities that introduce has near-universal membership. According to Harald substances into the ocean, such as OIF and AOA. Ginzky, these decisions therefore “represent the political will of almost all States worldwide.”335 The Before continuing, it is important to note that in widespread support for these decisions, however, 2013, parties to the London Protocol adopted a needs to be weighed against the use of hortatory resolution to amend the Protocol to specifically govern and qualified language.336 As noted by Reynolds, the marine geoengineering.344 This amendment has yet 2010 decision “merely ‘invites’ states to ‘consider the to enter into force and therefore is not yet legally guidance’” provided by the decision.337 These decisions binding on parties. For this reason, it is considered do not provide states with clear, concrete obligations separately below. Aside from this amendment, the concerning geoengineering activities, and therefore London Convention and Protocol apply only to only enhance the capacity of the CBD to govern marine geoengineering activities that qualify as marine geoengineering activities by a small degree. “dumping.” Under both agreements, dumping means the deliberate disposal of waste or other matter into The London Convention and London Protocol the sea “from vessels, aircraft, platforms or other
The London Convention and London Protocol are two separate agreements that form an international regime 338 LOSC, supra note 41, art 210. to govern the dumping of wastes at sea. States have 339 London Convention, supra note 155, art II.
340 See Strategic Plan for the London Protocol and London Convention, IMO (2017) at 1, online:
337 Reynolds, supra note 201 at 99. 344 Res LP.4(8), supra note 39.
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man-made structures at sea.”345 It also includes therefore will be considered dumping. In 2010, parties the deliberate disposal at sea of “vessels, aircraft, adopted a non-binding assessment framework to platforms or other man-made structures.”346 If matter help determine whether a proposed OIF activity is placed into the ocean for a purpose other than is legitimate scientific research.353 The parties have mere disposal, it is not considered dumping so long not adopted a similar framework specifically for as it is not contrary to the aims of the Convention/ AOA. However, AOA similarly involves placement Protocol.347 This definition of dumping encompasses of matter into the ocean for a purpose other than marine geoengineering activities conducted from a mere disposal. Large-scale field tests and full-scale wide variety of structures and installations within deployment activities will almost undoubtedly qualify or near the ocean, but only if the activity involves as dumping because they are likely to present risks of deliberately introducing matter into the ocean.348 harm to the marine environment. Small-scale research activities may be exempt from this definition if they This requirement restricts the capacity of the do not present risks to the marine environment. London Convention and Protocol to govern marine geoengineering activities and presents similar If a marine geoengineering activity qualifies as challenges to the definition of pollution under the dumping, it will be subjected to different rules under LOSC.349 OIF and AOA will satisfy this requirement, as the London Convention and the London Protocol. these proposals involve the deliberate introduction The Convention adopts a “positive list” approach to of matter (i.e., iron or calcium carbonate) into the regulating dumping activities in that it specifically lists ocean. Marine geoengineering activities that do not substances that are prohibited from being dumped, deliberately introduce matter into the ocean, such or that require a special permit to be dumped.354 as MCB, ocean upwelling/downwelling and certain Other substances may be dumped subject to a general microbubble techniques, will likely fall outside permit.355 The substances proposed for OIF and AOA are the scope of this definition, preventing the London not specifically listed, and therefore may be allowed via Convention and Protocol from governing them.350 a general permit.356 As such, the London Convention is largely permissive of marine geoengineering activities. Importantly, in 2008, the parties to the London Convention and Protocol decided that OIF activities On the other hand, the London Protocol takes a much are not dumping so long as they are for the purpose more restrictive approach to dumping activities. of legitimate scientific research.351 However, OIF It adopts a “reverse list” approach, which means activities for a purpose other than legitimate scientific that it prohibits the dumping of all substances, research, including activities that generate direct except those specifically listed.357 This list notably financial gains,352 will be considered contrary to the does not include the substances likely to be used aims of the London Convention and Protocol and in OIF or AOA activities.358 As a result, large-scale OIF and AOA activities are most likely prohibited under the London Protocol. Smaller-scale research
345 London Convention, supra note 155, art III(1)(a); London Protocol, supra note activities may be permitted, so long as they do not 264, art 1.4.1.1. risk harming the marine environment. As noted
346 London Protocol, supra note 264, art 1.4.1.2. above, parties have affirmed this approach for OIF activities in several non-binding decisions. 347 Ibid, art 1.4.2.2. Support for smaller-scale research is also reflected 348 See also Reynolds, supra note 201 at 88; Scott, “Mind the Gap”, supra note 307 at 46. in the approach taken by parties to governing ocean
349 The definition of pollution under the LOSC is adopted by the London Protocol, supra note 264, art 1.10.
350 Ginzky, supra note 305 at 1002. 353 UNEP, 2010 OFAF, supra note 352. 351 Regulation of Ocean Fertilization, Report of the Thirtieth Meeting of the Contracting Parties to the London Convention and the Third Meeting of the 354 London Convention, supra note 155, art IV(1)(a), Annex I. Annex II of the Contracting Parties to the London Protocol, UNEP, Res LC-LP.1, Annex 6, LC London Convention lists substances that require a special permit to be dumped. 30/16 (2008) at para 3. See also Res LP.4(8), supra note 39. This amendment is discussed in greater detail below. 355 Ibid, art IV(1).
352 Assessment Framework for Scientific Research Involving Ocean Fertilization 356 Reynolds, supra note 201 at 89. (OFAF), Report of the Thirty-Second Consultative Meeting and the Fifth Meeting of the Contracting Parties, UNEP, Annex 6, LC 32/15 (2010) at para 357 London Protocol, supra note 264, art 4.1.1, Annex 1. 2.2.2 [UNEP, 2010 OFAF]. See also Kerryn Brent et al, “International law poses problems for negative emissions research” (2018) 8:6 Nature Climate 358 For further analysis, see Scott, “International Law in the Anthropocene”, supra Change 451 [Brent et al, “International law poses problems”]. note 305 at 338.
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fertilization in the 2013 marine geoengineering alike, and detract from the capacity of these rules amendment,359 which is analyzed separately below. to govern marine geoengineering activities.
The different obligations established by the International law contains numerous rules that require London Convention and Protocol regarding marine states to prevent and/or minimize risks of harm to the geoengineering activities are summarized in territory of other states and the marine environment. Figure 3, below. These rules provide states with various obligations depending on whether a marine geoengineering States therefore have different obligations concerning activity is likely to have transboundary impacts, OIF and AOA activities, depending on whether they is likely to impact on biodiversity or involves the are a party to the London Protocol, or only the London placement of matter into the ocean. The main problem Convention. with these obligations is that they are typically very general and open to broad interpretation. States States that are party to neither the London Convention have limited guidance in how they should apply and nor the London Protocol, but are parties to the LOSC, operationalize these obligations for specific marine will be bound by a third set of rules that merely geoengineering activities. Moreover, in the case of require them to “adopt” laws and regulations, and dumping activities, states have potentially three take other “necessary” measures to prevent pollution different sets of obligations, depending on whether of the marine environment from dumping.360 they are party to the London Convention, London Having three sets of rules in international law that Protocol or just the LOSC. The differential coverage potentially apply to the same activity is likely to and complexity of rules applying to activities are cause confusion for researchers and policy makers significant challenges for building confidence in marine geoengineering activities such as OIF and AOA.
Figure 3: Application of the London Convention (LC) and London Protocol (LP) to Marine Geoengineering
Is the activity “dumping”?
OIF AOA/other
Is it “legitimate Is placement of matter for scientific purpose other than disposal research”? and is activity not contrary to Use 2010 OFAF aims of LC/LP?
Yes No Yes No
It is not It is It is not It is dumping dumping dumping dumping
LC LP LC LP LC LP LC LP
Activity is Activity is Activity is Activity is Activity is Activity is allowed allowed allowed Activity is allowed allowed allowed Activity is without without subject prohibited without without subject prohibited permit permit to permit permit permit to permit
359 Res LP.4(8), supra note 39.
360 LOSC, supra note 41, art 210.
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Can a State or Other Actor Be Held harm to the marine environment. However, many Liable for Harm? of these obligations are expressed in general terms and are open to wide interpretation, making it difficult to pinpoint when a state has breached an The previous section examined rules that aim to obligation. For example, under article 14(1)(a) of the prevent or minimize risks of transboundary or CBD, states have an obligation “as far as possible environmental harm under international law. In and appropriate” to introduce “appropriate” EIA other words, these rules aim to address harm before procedures for activities that may significantly affect it can occur. This raises the question: how would biodiversity. It would be extremely difficult to identify international law respond to a marine geoengineering if a state has breached this obligation, as the CBD activity if it resulted in transboundary harm or harm does not set precise standards for the EIA and allows to the marine environment? This section therefore states to raise the argument that an EIA was not considers the extent to which states can be held possible or was inappropriate in the circumstances. responsible and liable for harm caused by marine geoengineering activities under existing rules of Establishing a breach of the duty to prevent significant international law. It examines the most prominent and transboundary harm is also likely to be difficult, as this widely applicable of these rules, that is, customary law rule provides states with little guidance as to when the rules of state responsibility and rules for responsibility, risks of harm from an activity will meet the threshold liability and enforcement under the LOSC. level of significant to trigger obligations under this rule. Furthermore, just because harm results from a marine geoengineering activity does not mean a state State Responsibility has breached its obligations under international law. Under customary international law, states are As noted above, the no-harm rule and other obligations responsible for “wrongful acts,” and this responsibility to protect and preserve the marine environment under provides states with duties in relation to them, the LOSC provide states with a duty of due diligence to including a duty to make reparations for material take steps to avoid and minimize harm, but states do damage caused by wrongful acts.361 Wrongful not have to absolutely prevent harm from occurring.363 acts are acts that breach a state’s international It is therefore possible for a marine geoengineering legal obligations. For example, a wrongful act in activity to cause harm yet not qualify as a wrongful act. relation to marine geoengineering would occur if a state authorized its scientists to conduct marine A further challenge is proving attribution. It may geoengineering research within the EEZ of another be challenging to identify a causal link to attribute state without first obtaining that state’s permission; damage to a specific marine geoengineering activity.364 this would constitute a breach of article 246 under the Marine geoengineering is not the only stressor on the LOSC. If a marine geoengineering activity results in world’s oceans. Climate change, ocean acidification, harm to the marine environment or another state, this plastics and other human activities contribute does not necessarily mean it is wrongful and will give to marine pollution and have harmful effects on rise to rules of state responsibility. The rules of state the marine environment. It may be difficult to responsibility only apply if the harm results from the distinguish whether harm is the result of a marine breach of a state’s international legal obligations.362 geoengineering activity or another source. For example, microbubbles have the potential to contribute to ocean Establishing that a state has breached an international acidification, however, it may be difficult to attribute legal obligation in relation to a marine geoengineering any increase in acidity to a specific microbubble activity, and that this breach resulted in harm, will activity, given that ocean acidification is also being
be difficult. As illustrated above, states have several caused by high levels of CO2 in the atmosphere from obligations to prevent transboundary harm and
363 See also Reynolds, supra note 201 at 119. But see also Kerryn Brent, “Solar radiation management geoengineering and strict liability for ultrahazardous 361 See e.g. Corfu Channel Case (United Kingdom v Albania), [1949] ICJ Rep 4 at activities” in Neil Craik et al, eds, Global Environmental Change and 23; Case Concerning the Gabçikovo-Nagymaros Project (Hungary v Slovakia), Innovation in International Law (Cambridge, UK: Cambridge University Press, [1997] ICJ Rep 7 at 149. The rules of state responsibility are established under 2018) 161. Activities that qualify as “ultra-hazardous” may automatically customary international law, but have since been codified by the International breach customary international law if they cause harm. However, whether Law Commission. See “Report of the International Law Commission on the ultra-hazardous activities are subject to this different standard is disputed. work of its fifty-third session” (UN Doc A/56/10) YB Intl L Commission, vol 2, part 2 (New York: UN, 2001) art 31. 364 For a discussion of this challenge in the context of SRM, see David Reichwein et al, “State Responsibility for Environmental Harm from Climate Engineering” 362 Ibid, art 31. (2015) 5:2–4 Climate L 142 at 161–64.
40 International Law and Marine Geoengineering
other human activities. From a legal perspective, the existing rules of customary international law on to qualify as a wrongful act the breach of a rule state responsibility. Instead, they merely articulate must also be attributable to the state in question. these rules in the context of marine environmental This may be challenging if non-government actors protection provisions under Part XII of the LOSC. conduct geoengineering experiments or activities unbeknown to relevant state bodies/institutions. A key difference, however, between the LOSC and customary international law, is that the LOSC Rules of state responsibility may provide states with a provides states with compulsory dispute resolution potential avenue to hold other states responsible and mechanisms.366 A state party to the LOSC may refer claim reparations (including monetary compensation) a dispute about any provision under the LOSC to an for harm caused by marine geoengineering activities. international court or tribunal for adjudication without However, these rules only provide a liability regime first requiring the other state’s consent. So long as insofar as harm is the result of breaching an existing the other state in the dispute is party to the LOSC, rule of international law. As such, they can only they will be taken to have given advance consent respond to harm caused by marine geoengineering to international adjudication by the International activities in a limited number of circumstances. Tribunal for the Law of the Sea, the International Moreover, if an incident is disputed, it would be Court of Justice, an arbitral tribunal as set out under up to the states in question to consent to submit Annex VI of the LOSC, and/or a special arbitral tribunal the dispute to the International Court of Justice or set out under Annex VIII of the LOSC.367 No matter International Arbitration Tribunal for determination, which court or tribunal is selected, it will have the or settle the dispute through other means, such as power to prescribe provisional (i.e., interim) measures bilateral negotiations. The practical operation of state to prevent serious harm to the marine environment responsibility rules under customary international while a dispute is being adjudicated.368 If a marine law therefore depends heavily on the consent of geoengineering activity risks causing significant all states concerned. If consent is not present, and harm to the marine environment and is the subject absent any compulsory adjudication under a treaty, of a dispute under the LOSC, it may be possible for international adjudication will likely be stymied. an international court or tribunal to respond to the risks of the activity before they can materialize, or before further harm can be caused. In this sense, State Responsibility and Enforcement Rules dispute resolution mechanisms under the LOSC under the LOSC may provide more effective means to respond to The LOSC also establishes rules for responsibility, harm caused by marine geoengineering activities. liability and enforcement of rules for the protection of the marine environment. Articles 213–222 set out This section demonstrates that there are numerous rules that require states to enforce their domestic existing rules of international law pertinent to marine laws against states and non-state actors within geoengineering activities. However, these rules were their jurisdiction to minimize, prevent and control negotiated for different purposes, and not specifically pollution of the marine environment. Article 235 for the governance of marine geoengineering. reiterates the rules under customary international The extent to which this patchwork of rules can law, in that states are responsible for upholding contribute to marine geoengineering governance their obligations to protect and preserve the marine will vary, depending on the purpose of an activity, environment. However, this rule also requires states where it is conducted, which state is responsible to ensure that avenues for recourse are available for it and the types of impacts it is likely to have. within their domestic legal systems to provide Interpreting how this patchwork will apply to a compensation for harm caused by pollution.365 It specific marine geoengineering activity is complex, also require states to cooperate to implement their and existing rules may provide little concrete guidance existing rules under international law and develop as to how an activity ought to be conducted. further rules for state responsibility and liability for marine environmental pollution. States have yet, however, to develop more detailed rules. Taken 366 Ibid at XV(2). together, these rules do not significantly build on 367 For further explanation, see Bernard H Oxman, “Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals” in Rothwell et al, supra note 157, 394 at 397–401.
365 LOSC, supra note 41, art 235(2). 368 LOSC, supra note 41, art 290. See also Oxman, supra note 367 at 398.
41 Governance of Marine Geoengineering
Efforts have been made under the London Protocol to develop a specific framework for marine geoengineering governance. To date, this development represents the most specific response of the international law system to demands of marine geoengineering. The following section therefore analyzes this development under the London Protocol and considers the extent to which it can strengthen the capacity of international law to govern marine geoengineering.
42 Marine Geoengineering Amendments under the London Protocol
In 2013, parties to the London Protocol negotiated by which this amendment was negotiated within amendment LP.4(8) to enable this agreement the ocean dumping regime has been extensively to specifically govern marine geoengineering analyzed elsewhere.371 This report considers instead activities.369 The LP.4(8) amendment prohibits the related issue of whether the LP.4(8) amendment, OIF, except for activities that qualify as legitimate when it comes into force, can provide a comprehensive scientific research. It also establishes a framework to governance framework for marine geoengineering enable the London Protocol to govern other marine research, field testing and deployment.First, the geoengineering activities in future. The amendment rules that the LP.4(8) amendment establishes for has yet to enter into force, but it is the first attempt ocean fertilization are analyzed, followed by the by states to negotiate a set of legally binding rules for framework it establishes for future governance geoengineering governance within the international of other marine geoengineering activities. law system. It is therefore recognized as a very significant development, and a potential model for future geoengineering governance.370 The process
371 See e.g. McGee, Brent & Burns, supra note 82 at 67; Kemi Fuentes-George, “Consensus, Certainty, and Catastrophe: Discourse, Governance, and Ocean 369 Res LP.4(8), supra note 39. Iron Fertilization” (2017) 17:2 Global Environmental Politics 125; Harald Ginzky & Robyn Frost, “Marine Geo-Engineering: Legally Binding Regulation 370 Ginzky, supra note 305. under the London Protocol” (2014) 8:2 Carbon & Climate L Rev 82.
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Ocean Fertilization management procedures. An OIF activity will only be considered legitimate scientific research if all steps The LP.4(8) amendment operates through a positive of the framework have been satisfied to minimize list governance approach. New article 6bis prohibits the impact on the environment and maximize the geoengineering activities that are specifically scientific benefits from the activity, and if consent listed under Annex 4, which currently lists only has been sought from any other countries likely to be ocean fertilization activities. Ocean fertilization affected by the activity.381 LP.4(8) and the 2010 OFAF is defined as “any activity undertaken by humans therefore provide a very cautious and restrictive with the principal intention of stimulating primary framework for ocean fertilization governance. productivity in the oceans,” except for “conventional aquaculture, or mariculture, or the creation of The LP.4(8) amendment to the London Protocol is artificial reefs.”372 This is a broad definition that therefore a significant development in international includes ocean fertilization for the purpose of law. It may not yet be in force, but still provides addressing climate change, as well as activities that the most detailed provisions for the governance primarily intend to enhance marine productivity, of ocean fertilization activities agreed upon such as the Haida Gwaii experiment, which involved to date. Moreover, it is the first attempt of the a salmon fishery off the coast of Canada.373 The international law system to develop binding LP.4(8) amendment effectively prohibits all ocean rules for any type of geoengineering proposal. fertilization activities, except those carried out for legitimate scientific research.374 Until other marine geoengineering activities are listed under Annex 4, Framework for Marine they are permitted, so long as they do not otherwise Geoengineering Governance constitute dumping under the London Protocol,375 or are contrary to the objectives of the Protocol to protect and preserve the marine environment.376 In addition to establishing specific rules for OIF, the LP.4(8) amendment establishes a set of rules for the Whether a proposed ocean fertilization activity governance of other types of marine geoengineering constitutes legitimate scientific research will be technologies. The rationale for developing this determined by the 2010 OFAF.377 This framework framework is that other marine geoengineering requires the state responsible for a proposed marine technologies may be developed that will present geoengineering activity378 to conduct an initial risks of harm to the marine environment and fall assessment of the activity’s scientific attributes, within the scope of the ocean dumping regime.382 including whether the activity will lead to direct Other marine geoengineering activities can be economic gains379 and whether it will be subject to governed if parties agree to list them under Annex 4. scientific peer review.380 If the activity passes the This annex system provides for greater flexibility in initial assessment, the state must then conduct governing future marine geoengineering proposals. an EIA, which includes considering the site of the Under article 22 of the London Protocol, any party proposed activity, likely environmental effects and risk can propose an addition to Annex 4 to prohibit other marine geoengineering activities and provide for any exceptions to the prohibition (i.e., carrying out 372 Res LP.4(8), supra note 39 at Annex 4, 1.1. legitimate scientific research).383 Any additions to 373 For an overview of this experiment, see Abate, supra note 205 at 52–57. Annex 4 must be accepted by a two-thirds majority of
374 Res LP.4(8), supra note 39 at Annex 4, 1.3. the London Protocol parties and will enter into force after 100 days.384 Unlike the process for amending 375 London Protocol, supra note 264, art 1.4.1–3. the text of the Protocol,385 parties do not need to 376 Reynolds, supra note 201 at 90. formally adopt amendments to Annex 4 before it 377 UNEP, 2010 OFAF, supra note 352; Res LP.4(8), supra note 39, at Preamble, para 3.
378 A state will be responsible for an ocean fertilization activity if it is to be 381 UNEP, 2010 OFAF, supra note 352 at 4.1–4.2. conducted within their jurisdiction, if the nutrients to be placed into the ocean were loaded from their territory or if it is the flagship state of the vessel being 382 See McGee, Brent & Burns, supra note 81 at 71. used in the activity. See London Protocol, supra note 264, arts 9–10. 383 London Protocol, supra note 264, art 22(1). 379 UNEP, 2010 OFAF, supra note 352 at 2.2.2; see also Brent et al, “International law poses problems”, supra note 352. 384 Ibid, art 22(2)–(4).
380 UNEP, 2010 OFAF, supra note 352 at 2.2.3. 385 Ibid, art 21(3).
44 Marine Geoengineering Amendments
can enter into force.386 This means that new marine The general assessment framework for marine geoengineering technologies can be more readily geoengineering in Annex 5 has two broad purposes. governed.387 Although the London Protocol parties States can use the general assessment framework have the option of adding new activities to Annex 4 at to determine whether a marine geoengineering the present time, it is important to bear in mind that activity listed in Annex 4 should take place. The any additions will not actually take effect until the framework can also be used to develop additional LP.4(8) gains enough ratifications to enter into force.388 assessment frameworks that are tailored to specific marine geoengineering proposals, just as the OFAF If a new marine geoengineering activity is listed has been tailored to the features of OIF research. under Annex 4 of the LP.4(8) amendment, the London Either way, states must develop domestic laws or Protocol parties can decide to prohibit it outright, regulations to ensure any permits they issue meet or create exceptions where the activity might be the requirements of Annex 5.393 Annex 5 thus creates allowed, but subject to the issue of a permit to ensure a minimum standard that new specific assessment that any risks of harm to the marine environment frameworks must meet.394 This approach provides are minimized.389 Annex 5 of the LP.4(8) amendment some degree of flexibility in governing future marine establishes a general assessment framework, geoengineering activities by ensuring that parties which is similar to the 2010 OFAF, which sets are not stuck with the same assessment framework out decision-making rules for states to apply to for all new marine geoengineering activities.395 marine geoengineering activities when considering whether a permit should be granted. It includes The LP.4(8) amendment provides a detailed criteria for determining whether a proposed marine framework for marine geoengineering governance geoengineering research activity is legitimate, rules that has capacity to adapt to future scientific for consulting with potentially affected states, and and technological developments. It is a highly detailed provisions for carrying out EIAs and ongoing precautionary framework,396 significantly informed monitoring of activities that are authorized.390 by expert scientific advice as well as the advice of Moreover, London Protocol parties are only allowed environmental policy makers and international to authorize marine geoengineering activities if lawyers.397 It not only provides a model for future marine environmental pollution can be minimized, so geoengineering governance, but also provides that the activity is not thereby contrary to the aims an example of the processes through which new of the London Protocol.391 The general assessment governance mechanisms for marine geoengineering framework in Annex 5 of the LP.4(8) therefore requires might be developed within existing international states to adopt a highly precautionary approach organizations and treaty bodies.398 However, it when deciding whether to issue a permit for marine is important to keep in mind that LP.4(8) is an geoengineering activities, in keeping with their amendment to protect the marine environment from existing obligations under the London Protocol.392 geoengineering technologies, not to govern research or development of geoengineering technologies per se. LP.4(8) is an amendment to an existing environmental protection treaty and its capacity to provide a comprehensive governance framework 386 Parties will be automatically bound by the amendment, unless they make a for marine geoengineering activities will therefore declaration that they are unable to accept it. London Protocol, supra note 264, art 22(4). be limited by the aims, scope and membership of the London Protocol itself. These limitations of 387 See Chiara Armeni & Catherine Redgwell, “International legal and regulatory issues of climate geoengineering governance: rethinking the approach” (2015) the London Protocol are set out further below. Climate Geoengineering Governance Working Paper Series 021 at 26–27, online:
45 Governance of Marine Geoengineering
The LP.4(8) amendment may not be able to Ginzky and Robyn Frost, “activities which do not govern all marine geoengineering activities place matter into the marine environment would The LP.4(8) amendment defines “marine not come within the scope of the amendments. geoengineering” as follows: “a deliberate For example, the extraction of sea water for the intervention in the marine environment to purpose of cloud seeding in order to increase the manipulate natural processes, including to albedo effect would not fall within the scope of counteract anthropogenic climate change and/or the new regulation. Nor would a geoengineering its impacts, and that has the potential to result in technique be regulated that, for example, involved deleterious effects, especially where those effects the introduction of energy into the ocean.”405 may be widespread, long lasting or severe.”399 The amendment has the capacity to govern AOA Any activities that might be considered for listing activities, as they would involve the placement of under Annex 4, and hence be governed by the LP.4(8) calcium carbonate or other matter into the ocean.406 amendment, must, as a threshold issue, fall within this The amendment could also apply to blue carbon definition. The definition is wide enough to include initiatives, such as enhanced kelp farming, if they activities to address climate change, but also other involve the placement of matter (i.e., nutrients) activities for other purposes, such as enhancing marine into the ocean. The amendment will likely apply to productivity, or addressing ocean acidification.400 microbubble techniques that involve placing matter However, the definition excludes activities that are not into the ocean (i.e., glass microbeads). However, as deliberately intended to manipulate natural processes noted by Karen Scott, “the creation of microbubbles but may nevertheless manipulate natural processes through ‘the expansion of air saturated water as a side effect. According to Ginzky, examples of through vortex nozzles’ is likely to be excluded such activities include the laying of submarine cables from the remit of Article 6bis — since ‘matter’ is and the creation of artificial reefs.401 Moreover, the effectively not ‘placed’ into the sea. Furthermore, definition applies only to activities that have the the regime does not cover schemes such as marine potential to have “deleterious effects,” presumably cloud brightening which utilize the oceans as a tool on the marine environment. This is in keeping with from which to effect geoengineering but which do the objectives of the London Protocol to protect and not involve the placement of matter therein.”407 preserve the marine environment.402 The threshold for harm is, however, very low, in that an activity The LP.4(8) amendment is also unlikely to apply need show only the potential of risk of harm, and to ocean upwelling/downwelling, as this involves thus, harm does not actually need to eventuate.403 the transfer of water/nutrients from one part of the ocean to another, rather than the introduction The main provision of the LP.4(8) amendment, article of new matter.408 LP.4(8) therefore cannot 6bis, further limits the capacity of the amendment provide a comprehensive governance framework to govern marine geoengineering activities. Article for marine geoengineering activities, as key 6bis prohibits “the placement of matter into the proposals are currently beyond its scope.409 sea from vessels, aircraft, platforms or other man- made structures at sea for marine geoengineering activities listed in annex 4.” This has led several The amendment does not consider the need to international environmental law experts to conclude address climate change that the amendment can govern only those marine A further limitation of LP.4(8) is that it does not geoengineering activities that involve the placement consider the growing need to develop geoengineering of matter into the oceans.404 According to Harald technologies to ameliorate climate change. Admittedly, this amendment was negotiated prior to the signing of the Paris Agreement, and the 399 Res LP.4(8), supra note 39, art 1 (5bis).
400 Ginzky & Frost, supra note 371 at 86. 405 Ginzky & Frost, supra note 371 at 86.
401 Ginzky, supra note 305 at 1005. 406 Scott, “Geoengineering and the Marine Environment”, supra note 390 at 459.
402 Ginzky & Frost, supra note 371 at 86. 407 Ibid at 459. See also Ginzky & Frost, supra note 371 at 86.
403 Ibid; Scott, “Mind the Gap”, supra note 307 at 48. 408 Ginzky, supra note 305.
404 Ginzky & Frost, supra note 371 at 86; Scott, “Geoengineering and the Marine 409 See Scott, “Geoengineering and the Marine Environment”, supra note 390 at Environment”, supra note 390 at 461. 461.
46 Marine Geoengineering Amendments
assumptions about negative emissions contained activities and the wider risk of not engaging in such therein. The IPCC’s 5th Assessment Working Group activities (i.e., climate change continuing unabated). I Report was published in 2013, but the fact that CDR geoengineering had been incorporated into In short, the LP.4(8) amendment focuses only on most pathway scenarios to limit global temperature the risks marine geoengineering activities might increase to 2oC was not yet widely publicized.410 pose to the marine environment, with a particular At the time LP.4(8) was negotiated, geoengineering emphasis on the placement of matter, without therefore did not have as prominent a role in considering the bigger picture of geoengineering international climate change policy as it does today. or climate change governance.414 Given the extent to which CDR geoengineering is now incorporated It is possible that a closer linkage of the Paris into international climate change policy, this is Agreement and London Protocol may emerge in the a significant omission that further detracts from future. However, although the London Convention the amendment’s capacity to comprehensively parties have previously carried out some important govern marine geoengineering technologies. work around CO2 sequestration in geological structures,411 the LP.4(8) amendment’s failure to directly consider wider issues posed by climate The amendment has slow uptake with limited change is conspicuous, especially as the LP.4(8) potential parties amendment draws links to other international treaties, The LP.4(8) amendment needs to enter into force organizations and broader environmental issues. The before it can form a part of the London Protocol and preamble to the LP.4(8) amendment highlights the become legally binding on state parties. Under article need to conserve the marine environment and promote 21, to enter into force, two-thirds of state parties to sustainable use of the world’s oceans. It notes the COP the London Protocol must accept the amendment.415 decisions of the CBD discouraging states from engaging As of October 22, 2019, 53 states are party to the in geoengineering activities that might have an impact London Protocol,416 meaning that a minimum of 35 on biological diversity. The preamble also notes the states must accept the LP.4(8) amendment for it to IPCC’s 5th Assessment report and the expert meeting enter into force. On face value, this does not appear it held in 2011 on geoengineering. It is therefore to be a prohibitively large number. However, uptake surprising that the amendment makes no reference to of LP.4(8) has been slow. In the five years since the climate change as a significant environmental issue. It LP.4(8) amendment was negotiated, only five parties does not acknowledge the risks climate change poses have accepted it (Estonia, Finland, the Netherlands, to the marine environment, nor does it recognize Norway and the United Kingdom).417 The amendment the broader objectives of the UNFCCC to stabilize is therefore unlikely to enter into force and become an the levels of GHGs in the atmosphere.412 It also does operative part of the London Protocol anytime soon. not require or encourage any cross-organizational cooperation with the UNFCCC. Annex 5 requires Even if the amendment enters into force, its capacity permits for marine geoengineering activities to, as to govern marine geoengineering activities will far as practicable, minimize environmental impacts not extend to the activities of all states. The LP.4(8) and “maximize benefits.”413 However, LP.4(8) also does amendment can only bind states that are party to the not provide governance mechanisms that allow for London Protocol.418 As noted above, this is currently any sort of risk-risk trade-off between the marine only 53 states. This number is significantly less than the pollution risks posed by marine geoengineering
410 See e.g. Sabine Fuss et al, “Betting on negative emissions” (2014) 4 Nature Climate Change 850; Kevin Anderson & Glen Peters, “The trouble with 414 See also Karen N Scott, “Regulating Ocean Fertilization under International negative emissions” (2016) 354:6309 Science 182. Law: The Risks” (2013) 2 Carbon Climate L Rev 108 at 116.
4 11 Resolution LP.1(1) on the Amendment to Include CO2 Sequestration in 415 See also Scott, “Geoengineering and the Marine Environment”, supra note Sub-Seabed Geological Formations in Annex 1 to the London Protocol 390 at 461. (adopted 2 November 2006) (LC-LP.1/Circ.5), online:
47 Governance of Marine Geoengineering
87 states in the London Convention,419 and represents only one-quarter of the world’s states. As illustrated in Figure 3 above, several key states (i.e., those with likely capacity to engage in marine geoengineering activities) are not bound by the London Protocol, including India, Indonesia, Malaysia, Russia and the United States. Furthermore, of those states in the London Protocol, the LP.4(8) amendment will only bind those states that accept it.420 The only key state to accept the LP.4(8) amendment so far is the United Kingdom. As things stand, the LP.4(8) amendment is therefore unlikely to bind all key states that may engage in marine geoengineering.421 This detracts from the amendment’s capacity to govern marine geoengineering activities.
The capacity of LP.4(8) to bolster the capacity of international law to govern marine geoengineering technologies is significantly limited. The amendment has some capacity to adapt to new technologies and changes in scientific understandings. However, this feature cannot help the LP.4(8) amendment to overcome the shortcomings discussed above. For the above reasons, international policy makers will likely find it difficult to rely on this amendment alone to comprehensively govern marine geoengineering activities. It is therefore important to look beyond the London Protocol and to consider how other rules and regimes in international law might be developed to contribute to the governance of marine geoengineering activities. Current efforts to negotiate a new international agreement to protect biodiversity in areas beyond national jurisdiction (i.e., the high seas) may provide an important opportunity to do this.
419 As of October 16, 2019, 87 states are contracting parties to the London Convention. IMO, “Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter”, online:
420 London Protocol, supra note 264, art 21.
421 See also Ginzky & Frost, supra note 371 at 92.
48 Biodiversity Beyond National Jurisdiction — An Opportunity to Strengthen Marine Geoengineering Governance under International Law?
Negotiations are presently under way to establish A new agreement for BBNJ is not likely to provide a new agreement under the LOSC aimed at the a perfect solution to the challenges of marine conservation of marine biodiversity beyond geoengineering governance. As a new agreement, national jurisdiction (BBNJ).422 If successfully it will face many similar hurdles to the LP.4(8) negotiated, this agreement will establish new rules amendment to the London Protocol, that is, scope, and obligations for activities on the high seas. This membership and entry into force. However, despite section considers whether the negotiation of this these limitations, it is essential that geoengineering new agreement has the potential to fill some of scientists and governance experts actively engage the gaps in the existing patchwork of international with negotiation of this new agreement. This law rules governing activities in the world’s oceans is to ensure that whatever new rules might be and enhance the capacity of the international law developed through BBNJ negotiations will enhance system to govern marine geoengineering activities. the capacity of international law to govern marine geoengineering activities and are not overly prohibitive of responsible research and development.
422 Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, GA Res 69/292, UNGAOR, 69th Sess, UN Doc A/Res/69/292 (2015).
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An Overview of BBNJ the marine environment of the high seas.428 This includes specifying thresholds and criteria for when The process to develop a BBNJ agreement was initiated an EIA is required,429 provisions to address cumulative by the United Nations General Assembly in its 2015 impacts from activities,430 and establishing procedures resolution 69/292.423 This resolution established a for the preparation and content of an EIA.431 The new preparatory committee open to all states to participate agreement may also list activities that automatically in and develop a draft of a new treaty. The preparatory require an EIA.432 The development of more specific committee adopted a set of recommendations to EIA rules and procedures for activities on the high seas form a draft text in July 2017.424 States participated would fill a considerable gap in the existing patchwork in the first round of negotiations in September 2018, of international oceans governance, described above. followed by a second round in March 2019 and a These rules have the potential to provide states, third in August 2019; a final round is scheduled to researchers and policy makers with more specific take place in the first half of 2020.425 A more detailed guidance on how EIAs ought to be conducted for draft text of the new agreement has been made marine geoengineering activities in high-seas areas. available, which includes different governance options for negotiation.426 Although the precise content Third, the BBNJ agreement intends to create rules of the new agreement remains unsettled, there is for capacity building and the transfer of marine undoubtedly a considerable degree of momentum technologies.433 The precise content of these rules behind the development of a new BBNJ agreement. has yet to be agreed, but their broad objective will be to support states to achieve “conservation and The BBNJ agreement is intended to establish rules for sustainable use of biological diversity in areas beyond various issues relating to activities in or affecting areas national jurisdiction.”434 This might be achieved of the marine environment of the high seas. These through capacity-building mechanisms that facilitate issues were set out in the preparatory committee’s the transfer of marine technology.435 Such rules could 2017 recommendations and have since been fleshed potentially assist developing states to contribute to out in more detail in the 2019 draft. The draft rules marine geoengineering research and develop their pertinent to marine geoengineering activities are capacity to participate in any eventual deployment as follows. First, the agreement aims to establish activities. A new agreement for BBNJ could therefore area-based management tools for activities in the have significant implications for marine geoengineering high seas, such as rules for establishing marine research, field testing and eventual deployment. protected areas.427 Parties are yet to agree on the precise objectives and operation of such tools, but marine protected areas typically involve significant BBNJ and Geoengineering restrictions on fishing and other extractive or harmful Governance activities in a defined area of the ocean. Such rules could have significant implications for where marine geoengineering activities can be conducted. The potential for the new BBNJ agreement to contribute to geoengineering governance has already Second, the BBNJ agreement aims to establish detailed been identified by several states and non-governmental EIA rules for activities conducted in, or likely to affect, organizations (NGOs) in preparatory committee meetings. In 2016, the African Group suggested that
423 Ibid. marine geoengineering activities in high-seas areas
424 Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on 428 Draft BBNJ Agreement, supra note 426, Part III. the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UNGAOR, UN Doc A/AC.287/2017/PC.4/2 429 Ibid, art 24. (2017) at part III [Preparatory Committee Recommendations]. 430 Ibid, art 25. 425 Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, online:
426 Draft Text of an agreement under the United Nations Convention on 432 Ibid, art 29. the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UNGAOR, A/ 433 Ibid, Part V. CONF.232/2019/6 (17 May 2019) [Draft BBNJ Agreement]. 434 Ibid, Preparatory Committee Recommendations, supra note 424, art 6.1. 427 Preparatory Committee Recommendations, supra note 424, art 4; Draft BBNJ Agreement, supra note 426, Part III. 435 Draft BBNJ Agreement, supra note 426, arts 43–46.
50 Biodiversity Beyond National Jurisdiction — An Opportunity to Strengthen Marine Geoengineering Governance under International Law?
should be specifically listed under the new agreement as automatically requiring an EIA.436 In 2017, the High Seas Alliance, an international environmental NGO, argued that EIAs relating to geoengineering proposals should be subject to an international decision-making process under the BBNJ.437 These examples suggest that, although the BBNJ agreement is intended to be broad in its scope, some states and NGOs may use the negotiation process as a vehicle to develop new rules pertinent to marine geoengineering governance.
The negotiation of a new BBNJ agreement presents both an opportunity and a risk for marine geoengineering governance. The opportunity is that a new agreement has the potential to fill key gaps in the existing international law framework for marine geoengineering activities in high-seas areas.438 In particular, an agreement on BBNJ could result in more detailed EIA rules that are easier to operationalize for marine geoengineering activities. There is, however, a risk that new rules under the BBNJ could be overly restrictive and prevent responsible research and development of marine geoengineering. That is, they might not necessarily be “fit for purpose” when it comes to the bigger picture of marine geoengineering governance.
Given that this is an agreement to protect biological diversity in the world’s oceans, and not an agreement under the auspices of the UNFCCC, there is a further risk that rules may be developed that do not allow for risk-risk trade-offs to be made between the risks of marine geoengineering and the risks of climate change under business-as-usual scenarios. This risk is not unfounded, as recent attempts to govern geoengineering activities under the CBD and the London Protocol have also failed to develop mechanisms to allow for risk-risk trade- offs. It is therefore essential that experts in marine geoengineering science and governance actively engage in the development of this new agreement and be consulted in further drafting and negotiation processes.
436 “Summary of the Second Session of the Preparatory Committee on Marine Biodiversity beyond Areas of National Jurisdiction, 26 August–9 September 2016”, IISD Reporting Services Earth Negotiations Bulletin, online:
437 “Summary of the Fourth Session of the Preparatory Committee on Marine Biodiversity beyond Areas of National Jurisdiction, 10–21 July 2017”, IISD Reporting Services Earth Negotiations Bulletin, online:
438 See also Scott, “Mind the Gap”, supra note 307 at 53–54.
51
Conclusion
The 2015 Paris Agreement has set a collective global to reduce their GHG emissions, but that CDR will goal of holding temperatures to between 1.5 and almost assuredly be needed to hold climate change 2oC above pre-industrial levels. However, after more within safe limits. Unlike CDR, SRM does not feature than two decades of UN negotiations, global GHG in the integrated assessment models. However, it emissions continue to rise.439 Current projections may also have an important role in preventing global indicate that even with full implementation of Paris temperatures from overshooting the Paris targets. Agreement pledges, the planet is on a pathway to a temperature increase of approximately 3.2oC by To date, sulfur aerosol injection and BECCS 2100, well beyond what is considered climatically proposals have taken centre stage in academic and safe. As discussed in the first section of this report, policy discussions on geoengineering. However, as most integrated assessment model runs that hold described above, there are numerous marine CDR temperatures to within 1.5 and 2oC contemplate and SRM geoengineering proposals that also have the large-scale deployment of technologies to draw potential to address anthropogenic climate change.
CO2 from the atmosphere. It is therefore becoming This report examined the following key proposals: increasingly clear that countries must expedite efforts MCB, microbubbles, OIF, artificial upwelling/ downwelling, AOA and blue carbon enhancement. These proposals are diverse in terms of their purpose, 439 See IPCC, Global Warming of 1.5°C, supra note 8 at 1. scale of application, likely effectiveness, levels
53 Governance of Marine Geoengineering
of environmental and social risks, and levels of international law rules on transboundary harm to requisite international cooperation. Some marine global commons are binding on all states, but similarly geoengineering techniques, such as kelp farming, suffer from a lack of specificity. Rules of international might be carried out purely within domestic waters, law emanating from regional or sectoral agreements with little risk that the effects might spread beyond generally have greater specificity, but restricted these areas. However, other marine geoengineering participation and scope of geographical application. proposals, such as OIF, AOA, MCB and marine The LP.4(8) amendment to the London Protocol is a microbubbles, involve environmental and/or social case in point. It was negotiated specifically to govern risks that are likely to have impacts in transboundary marine geoengineering activities, but it does not or high-seas contexts. If marine geoengineering is to have nearly enough ratifications to enter into force. contribute to the suite of climate change response The fourth section of the report highlights further measures (i.e., mitigation, adaptation, technology challenges that significantly limit the capacity of the transfer, and financing), it will need to move beyond LP.4(8) amendment to govern marine geoengineering the laboratory to small-scale field testing, large- activities. Together, the third and fourth sections scale field testing and eventual deployment. As the illustrate that applying this patchwork of rules history of OIF research demonstrates, field testing from the international law system to a specific and deployment of marine geoengineering techniques marine geoengineering activity is a complex task that have transboundary and/or high-seas impacts that is not conducive to providing clear guidance will place new and significant demands upon the to states, researchers and funding bodies. international law system to provide governance of their potential risks and opportunities. With an eye to the future, the fifth section of this report examines negotiations that were recently launched As illustrated by the third section of this report, under the LOSC to establish a new global treaty on the international law system is based upon state conservation of marine biological diversity in areas sovereignty (i.e., domestic jurisdiction over land, beyond national jurisdiction. Under the international internal waters, territorial seas and EEZ) and operates law system, the high-seas areas have traditionally had primarily on the consent of states to various treaties the least-developed rules of governance for resource and rules of customary international law. The use, and hence are most vulnerable to exploitation. international law system has, over time, developed The BBNJ negotiation process has therefore been various rules in response to issues affecting the oceans, launched to develop new rules for high-seas area- such as maritime access, fisheries management based management, EIA and capacity building/ and pollution, resulting in a patchwork of global technology transfer to developing countries. While framework agreements, sectoral agreements and the BBNJ negotiations are at an early stage, the fifth customary international law rules. This patchwork section outlines how marine geoengineering activities of rules for ocean governance contains several have been raised by several states and NGOs as a bodies of rules that might apply in governing marine topic for consideration. The BBNJ negotiation is both geoengineering activities. This includes rules under an opportunity and a risk for marine geoengineering global agreements, such as the LOSC, sectoral governance. A new agreement has the potential to agreements such as the London Convention and fill key gaps in the existing international law for Protocol, CCAMLR and the Madrid Protocol to the marine geoengineering activities in high-seas areas; Antarctic Treaty, regional seas agreements and RFMOs. however, it is also important that any BBNJ treaty is not overly restrictive in terms of responsible research However, these bodies of rules were negotiated and development of marine geoengineering in high- for quite different purposes, and none were seas areas. Recent attempts to govern geoengineering specifically developed for the governance of marine activities under the CBD and the London Protocol geoengineering. The extent to which this patchwork have failed to develop mechanisms to allow for of rules might contribute to marine geoengineering risk-risk trade-offs. It is therefore essential that governance will vary, depending on the purpose experts in marine geoengineering science and of an activity, where it is conducted, which state is governance actively engage in the negotiation of responsible for the activity, and the types of impacts any BBNJ agreement to ensure that its rules are it is likely to have. The global framework agreements appropriate for marine geoengineering governance. generally have wide coverage (i.e., membership of most states, including key geoengineering states), but Marine geoengineering poses a new set of challenges lack specificity in their obligations. The customary that international law must adapt and respond to.
54 Conclusion
These challenges include the environmental and social risks posed by individual proposals. The LP.4(8) amendment to the London Protocol demonstrates that existing international agreements have the capacity to respond to these challenges. However, the most significant governance challenge stems not from the proposals themselves, but from climate change pathway models and policy. Rapid and dramatic cuts in GHG emissions alone are unlikely to keep global temperatures within safe limits, and geoengineering technologies may therefore have an essential role to play in meeting the temperature targets set by the Paris Agreement. This reality must be acknowledged by any new attempts in international law to govern marine geoengineering. Moving forward, states, policy makers and international lawyers will need to develop tools that can balance the individual risks of marine geoengineering proposals against the imperative to address climate change.
Authors’ Note
We would like to acknowledge and thank Jan McDonald, Marcus Haward, Chris Vivian and the (anonymous) reviewers for their kind advice and helpful comments on aspects of this report.
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About the Authors
Kerryn Brent is a lecturer in the Faculty of Law at of International Law Oceans and International the University of Tasmania, and a deputy director Environmental Law Interest Group and a member of of the Australian Forum for Climate Intervention the Centre of Marine Socioecology. She is admitted as Governance, Faculty of Law, University of Tasmania. a solicitor to the Supreme Court of New South Wales. Kerryn researches in the field of international environmental law, specializing in the governance Wil Burns is a senior fellow at the Centre for of solar radiation management (SRM) and carbon International Governance Innovation, and professor dioxide removal (CDR) technologies. In 2017, Kerryn of research and founding co-director of the Institute was awarded her doctorate on the topic of customary for Carbon Removal Law & Policy at American international law and the governance of stratospheric University’s School of International Service in aerosol SRM proposals. Since then, her research has Washington, DC. He is co-chair of the International also focused on the governance of marine SRM and Environmental Law Committee of the American branch CDR technologies. Her research has been published of the International Law Association. Previously, in leading international journals, including Nature he served as the founding co-executive director of Climate Change, and she has been invited to present the Forum for Climate Engineering Assessment, a her research on geoengineering and international scholarly initiative of the School of International law in Australia and overseas. Kerryn is currently Service at American University. He also served as the co-chair of the Australia and New Zealand Society director of the Energy Policy & Climate program at
57 Johns Hopkins University in Washington, DC. Prior to becoming an academic, he served as assistant secretary of state for public affairs for the State of Wisconsin and worked in the non-governmental sector for 20 years, including as executive director of the Pacific Center for International Studies, a think tank that focused on implementation of international wildlife treaty regimes, including the Convention on Biological Diversity and the International Convention for the Regulation of Whaling. He is also the former president of the Association for Environmental Studies & Sciences, former co-chair of the International Environmental Law interest group of the American Society of International Law and chair of its International Wildlife Law Interest Group. He served as founder and editor-in-chief of the Journal of International Wildlife Law & Policy and Case Studies in the Environment. He has published more than 80 articles and chapters in law, science and policy journals and books, and has co-edited four books. He holds a Ph.D. in international environmental law from the University of Wales-Cardiff School of Law. His current areas of research focus are climate geoengineering, climate loss and damage, and the effectiveness of the European Union’s Emissions Trading System.
Jeffrey McGee is an associate professor in climate change, oceans and Antarctic law at the Faculty of Law and Institute for Marine and Antarctic Studies at the University of Tasmania. He is also director of the Australian Forum for Climate Intervention Governance at the University of Tasmania. Jeff serves on the advisory boards of the Forum for Climate Engineering Assessment and the Institute for Carbon Dioxide Removal Law and Policy at American University in Washington, DC. He is an assistant editor of the journal Carbon and Climate Law Review and serves on the editorial board of Review of European Comparative and International Environmental Law, International Environmental Agreements: Politics, Law, Economics and Case Studies in the Environment.
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